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SPECIAL ASSESSMENTS 



A STUDY IN MUNICIPAL FINANCE 



BY 

VICTOR ROSEWATER, A. M. 

University Fellow in Political Science 



Submitted in Partial Fulfillment of the Requirements for the 
Degree of Doctor of Philosophy 

IN THE 

Universit\^ Faculty of Political Science 
CoLUMBLv College 



NEW YORK 
1893 



TABLE OF CONTENTS, 



PAGE 

Chapter I. Introductory. 

§ I. Benefit as a Factor in Finance 9 

§ 2. Special Assessments in France 10 

§ 3. Special Assessments in Belgium 12 

§ 4. Special Assessments in Germany 13 

§ 5. Special Assessments in the United Kingdom . 16 

§ 6. Special Assessments in the United States . . 20 

Chapter II. History of Special Assessments in the 
United States. 

§ I. New York before 1813 . 22 

§ 2. New York, 1813 to 1851 25 

§ 3. New York since 185 1 29 

§ 4. Massachusetts 34 

§ 5. The Remaining New England Commonwealths. 35 

§ 6. Pennsylvania 36 

§ 7. The Remaining North Eastern Commonwealths. 38 

§ 8. The Southern Commonwealths 39 

§ 9. The North Central Commonwealths .... 45 

§ 10. The North Western Commonwealths .... 48 

§ II. The Coast Commonwealths and Territories. . 50 

§ 12. Summary 52 

(V) 



^[ TABLE OF CONTENTS. 

Chapter III. Special Assessments in Practical 
Operation. 

§ I. Analysis of Systems of Assessment . . . 



... 53 

§ 2. Special Assessments in New York City ... 54 

§ 3. Assessments for Street Improvements. ... 54 

§ 4. Assessments for Street Openings 56 

§ 5. Collection and Application of Assessments . . 58 

§ 6. Remedies of the Taxpayer 58 

§ 7. Local Variations: Purposes; Acquiring Juris- 
diction 59 

§ 8. Notice; Subjects Assessed; Rule of Estimation. 62 
§ 9. Limitations on Amount; Confirmation and 

Legal Nature*. 64 

§ 10. Collection and Remedies 65 

§ II. The Rebate Nuisance 6^ 

§ 12. Rebates in Minneapolis 68 

§ 13. Rebates in Chicago , 68 

§ 14. Extravagance and Corruption 71 

§ 15. The New Jersey Insolvent Cities 71 

§ 16. Assessment Arrearages in Brooklyn .... 73 

§ 17. The New York Assessment Commission . . 75 

§ 18. Statistics of Special Assessments yZ 

§ 19. Classification according to Purposes .... 80 
§ 20. Variations in Receipts from Special Assess- 
ments 82 

§ 21. Statistics of Assessment Arrearages and Sales. 82 

Chapter IV. The Law of Special Assessments. 

§ I. The Legal Definition 84 

§ 2. Legal Theories 85 

§ 3. Under the Police Power 86 

§ 4. Under the Power of Eminent Domain ... Zj 

§ 5. Under the Taxing Power 88 



TABLE OF CONTENTS. yii 



PACE 



§ 6. The Essential Limitations 89 

§ 7. Public Purpose 90 

§ 8. Apportionment 95 

§ 9. Not to Exceed Benefits 96 

§ 10. Legislative Omnipotence 102 

§ II. Extent of Municipal Powers 103 

§ 12. Purposes of Special Assessments 104 

§ 13. Acquiring Jurisdiction 107 

§ 14. Notice and Hearing Ill 

§ 15. The Subjects of Assessment . . 113 

§ 16. The Rule of Estimating Benefits 114 

§ 17. Report and Confirmation 117 

§ 18. The Legal Nature of the Charge \\g 

§ 19. Collection Proceedings 121 

§20. Remedies of the Taxpayer . . ..... 122 

§ 21. The Trend of Legal Interpretation 124 

Chapter V. The Theory of Special Assessments. 

§ I. The Place of Special Assessments in Finance. 127 
§ 2. Special Assessments Compared with General 

Taxes 129 

§ 3. Special Assessments Compared with Special 

Taxes 129 

§ 4. Special Assessments Compared with Fees . . 130 

§ 5. Incide"nce as between Owner and Occupier . 132 
§ 6. Incidence as between Owner and Subsequent 

Purchaser 135 

§ 7. Double Taxation 137 

§ 8. The Justice of Special Assessments 137 

§ 9. The "Unearned" Increment 140 

§ 10. Practical Objections and Abuses 142 

§ II. Results 144 



viii TABLE OF CONTENTS. 



PAGE 



Bibliographical Note 146 

Bibliography 148 

Table OF Cases 150 



CHAPTER I. 

INTRODUCTORY. 

§ I. Benefit as a Factor in Finance, The idea of benefit was 
at one time the controHing factor in the imposition of all pub- 
lic charges. Only slowly and gradually and driven by force 
of necessity did the legislator and the financier begin to adopt 
other bases for taxation. And long after the practice of appor- 
tioning the general public expenses according to the advan- 
tages or protection conferred by government had been in part, 
if not wholly, abandoned, it was still the custom of many emi- 
nent economists to build their entire theory of public revenue 
upon the foundation of the benefit derived from its expendi- 
ture. To-day this is no longer true. The abstract basis of 
general taxation is commonly considered to be not the ser- 
vices rendered by the state, but the ability of the contributor 
to pay. Benefit, if recognized as a factor at all, is admitted 
only so far as it serves as one of the indices of ability. The 
position of theory and practice has been reversed : whereas 
formerly theory lagged behind practice, practice has now been 
outstripped by theory. Here, as in many other branches of 
economics and finance, the development seems to have been 
pushed to the extreme. Benefit still plays an important role 
in the imposition of certain public charges, particularly in 
local finance. In this country it finds an acknowledged scope 
of action in those numerous cases where municipal improve- 
ments result in distinct and traceable advances in the value of 
adjacent real property. The impositions laid upon the prop- 
erty-owners in order to defray the expenses of such improve- 
ments are with us technically known as special assessments, 
359] 9 



lO 



SPECIAL ASSESSMENTS. [360 



The purpose of this monograph, then, is to study the history 
of special assessments, the methods and extent of their appH- 
cation, their legal aspect before the courts, and their position 
in the science of finance. 

§ 2. Special Assessments in France. Although rarely im- 
posed, charges in the nature of special assessments are not 
altogether unknown in Europe. Records remain of the appli- 
cation of the underlying principle in France as early as 1672. 
At that time the question arose whether, when dark and narrow 
streets are widened, the proprietors of those houses which profit 
by such improvements ought not to contribute to the expense. 
Already decided several times in the affirmative, the decree of 
the council now settled it once for all. By its provisions the 
owners of several houses in Rue des Arcis facing the demol- 
ished buildings were ordered to bear their shares of the cost 
in proportion to the advantages which they should receive 
therefrom. Although issued for the particular case, that deci- 
sion became ihe rule. So a few years later,^ a new decree en- 
joined it upon the property-owners of Rue Neiive-Saint-Roche 
to pay, according to an assessment roll ordered by the king, 
the sum of 37,515 livres for distribution among those parties 
who were " required to withdraw their buildings in order to 
leave space for the enlargement of the street."^ 

Similar assessments for benefit were again authorized by the 
legislature of 1807 under the name oi indemniies pour paiement 
de plus-value.^ According to the law then enacted, "when by 
the opening of new streets, by the creation of new public 
places, by the construction of quays, or by any other public 
work, general, departmental, or communal, ordered and ap- 
proved by the government, private property shall have acquired 
a marked increase in value, such property may be charged with 

' May 27th, 1678. 

' Clement, La Police sous Louis XIV., p. 144. 

^ Loi relative au desskchement des niarais^ 16 Septembre, 1807. 



361] SPECIAL ASSESSMENTS. 1 1 

the payment of an indemnity which shall be adjusted accord- 
ing to half the value of the advantages acquired."' This 
enactment still governs such transactions in France. But as 
we learn from the work of M. Aucoc, the procedure thus 
authorized has been followed in but very few instances, and he 
has not been able to cite more than a score of applications.^ 
The greater number of these were made at the instigation of 
cities which were constructing street improvements upon a 
large scale — Paris, Lyons, Grenoble, Toulouse. Thus an 
ordinance of March 31st, 1843, declared these clauses of the 
law of 1807 applicable to the riparian owners upon Rue de 
Rambutcaii in Paris. But for the improvements effected upon 
the streets of Paris, Lyons and Marseilles during the second 
empire — improvements much more important than those of 
previous years — the city authorities did not make use of the 
power vested in them. 

The central government has rarely employed the system. 
In 1855 in the case of a quay erected by it in conjunction with 
the city of Lyons upon the right bank of the Saone, it was de- 
'cided to apply the provisions in question to those proprietors 
whose lands would be increased in value by reason of the exe- 
cution of the work. Another striking example is found in the 
measures taken in 1854 and 1855 on occasion of the works on 
the lower Seine. The embankments then constructed resulted 
in the artificial reclamation of considerable land, and the gov- 
ernment, instead of selling this to adjacent owners, merely 
subjected them to an assessment for the benefits conferred. 

The system enacted by the law of 1807 is in brief this:" The 
liability of the property owners must be declared by a decree 
of the Chef de i' Etat rendered in the Conseil d' Etat. The 
assessment is fixed by a commission organized for the pur- 

1 Law 0/1807, sec. 30. 

' Droit Administratif, ii., p. 732 et seq. 

' Aucoc, Droit Administratif, ii., p. 734 et seq. 



12 SPECIAL ASSESSMENTS. [362 

pose, whose duty it is to designate the property-owners who 
are specially benefited by the work, to determine the amount 
of the benefit, and to fix the share which each is to pay. As 
a rule, the decree which authorizes the assessment fixes the 
district of benefit; in every case it states the portion, not ex- 
ceeding one-half, of the value of the accruing advantages which 
may be demanded. To this end thecommission are required 
to secure the advice of experts, and their report may be con- 
tested before the Conseil d' Etat. The assessment may be 
paid, at the choice of the taxpayers, either in ready money, in 
installments at four per cent, interest, or by a transfer of a part 
of the property if divisible ; or the whole property may be 
given up at its appraised valuation before the improvement. 
Upon refusal or neglect to pay, the administration may pro- 
ceed against the delinquents as with any ordinary debt due to 
the government. 

§ 3. Special Assessments m Belgium. At the time of its en- 
actment, the French law of 1807 extended to a portion of the 
territory now included in Belgium. When the latter country 
finally became independent, the doctrine of special assessment 
for benefit not only persisted, but attained a wider application 
than it had received in France. The Belgian towns are author- 
ized both to determine whether the cost of a particular improve- 
ment shall be met from the public treasury or from charges 
upon abutting property-owners, and also the various details of 
the system by which such charges are imposed. The proced- 
ure, therefore, differs from town to town. The foot-front rule 
of estimating benefits appears to have been most commonly 
adopted, although the practice is not uniform as to apportion- 
ing the whole or a designated portion of the expense upon the 
improvement district. Taken altogether, the purposes to 
which the system is applied in Belgium are more numerous 
and varied than elsewhere in Europe. The original plan com- 
prehended only the expenses of opening and constructing new 
streets. The local ordinances of the different towns include, 



363] SPECIAL ASSESSMENTS. 1 3 

in addition thereto, the building of foot-ways, the laying of 
pavements, the construction of sewers, the sweeping and 
sprinkling of streets, the enlargement and repair of existing 
streets and public places. Moreover, the central government 
has similarly assessed the cost of opening canals upon the 
adjacent proprietors.^ 

§ 4. Special Assessments in Germany. There are three 
classes of public roads in Prussia. First, highways adminis- 
tered by the province authorities. Second, a group of lesser 
general roads administered by the circle. Third, the city 
streets under the control of the municipal government. 
Whether a road belongs to one class or to another depends 
largely upon its historical development. Of those belonging 
to the third class, the older ones have usually arisen without 
any specific legal authorization, the cost being defrayed as 
local custom might direct. Only since 1875 has a specially 
ordained procedure been provided by a general law for the 
construction of new streets. This procedure involves certain 
charges upon abutting owners very much in the nature of 
special assessments. They are termed in Prussia Interesseiiten- 
znscJiusse or Inter essse^itenchaiisseebeitr age? 

According to the law of 1875, street improvements may be 
made at the instance either of the police authorities or of the 
the municipal executive board, subject to the consent of the 
municipal council.^ The approval of the police authorities is 
necessary in every instance, unless upon appeal the council of 
the circle over-rules the decision of the police officials. After 
such approval has been secured, the plan of the proposed im- 
provement must be made public, and opportunity must be 
given for hearing any objections which may be urged. Only 

^ Leemans, Des hnpositions Comniunales en Belgiqiie, chap. 5 to 8. 

2 Leidig, Preiissisches Stadtrecht^ pp. 375, 385. 

* Gesetz betreffend die Atileguvg tind Verdnderuvg von Strassen und PldU 
zen in Stddten und Idndlichen Ortschaften, votn 2 Juli, i8y^. See also Leidig, 
p. 386 et seq. 



14 SPECIAL ASSESSMENTS. [364 

after the decision of the council of the circle upon disputed 
points, if any, is the plan of the improvement to be formally- 
proclaimed by the municipal council. For defraying the ex- 
penses of the improvement, the city is then authorized to levy 
special assessments upon the property-owners thereby bene- 
fited. 

Liability to assessment may arise in two ways: First, 
where, upon the construction of a new street, the property- 
owner erects a building upon his land after the beginning of 
the improvement. Second, where, upon the improvement of a 
street already laid out, but still without abutting buildings, the 
property-owner erects a building upon his land after the begin- 
ning of the improvement. In both cases the extent of the 
benefit chargeable is the same ; that is to say, all parties own- 
ing property abutting upon the street who commence the erec- 
tion of buildings after the designated day are subject to assess- 
ment.^ In the sum assessable upon the parties benefited are 
included both the cost of the entire street improvement and 
also the cost of maintenance for a specific period not exceed- 
ing five years. And the cost of the street improvement com- 
prises the expenses of purchasing and clearing the land, the 
original construction, the drainage and the provisions neces- 
sary for lighting. The individual assessed is required, as the 
local ordinance may provide, to pay his share of half the total 
expenses in the ratio which the frontage of his property bears 
to the whole street line. If, however, the street exceeds 
twenty-six metres in width, half the cost is to be computed 
upon the basis of that width and the remainder charged to the 
city as a whole. 

• The ordinance may require a single payment, or one pay- 
ment toward the cost of construction and a periodical 
contribution for maintenance. The assessment upon the pro- 
perty-owner becomes due upon that day when the liabil- 

^ The city may prohibit the erection of buildings upon land necessary for a con- 
templated street until the street is legally laid out. 



365] SPECIAL ASSESSMENTS. 1 5 

ity of the city arising out of the improvement in its whole 
extent becomes legally determined; but if the property-owner 
does not erect his building until later, it then becomes due im- 
mediately/ The contribution demanded in Prussia is not 
strictly a real charge. If the property is alienated by the owner 
after the assessment is due, the city looks to him and not to 
his successor for payment. If, on the other hand, he alienates 
after the time when he became liable to assessment, but before 
the latter is due,^ then the owner at the time the assessment 
becomes due is required to pay the same. On demanding 
payment, it is incumbent upon the city to show its legal 
authority, while the remedies of the taxpayer are the same as 
for other public impositions. 

Systems very similar to that just described as in force in 
Prussia exist in various other German commonwealths.^ In 
Bavaria the so-called Soziallasien are impositions demanded 
of those who, within a particular local district, derive special 
advantages from a certain street, bridge or well. These date 
from an ordinance of 1831. No permission to build will as a 
usual thing be granted for new localities until the land needed 
for street purposes has been put into proper condition ; and 
those who build later must, before they seek to obtain permits, 
first pay their proportionable share of the cost. In Wiirtem- 
berg and Hesse, upon the construction of new streets or the 
extension of existing ones, it may be required by local ordin- 
ance that the abutting property-owners who wish to erect 
buildings thereon, must bear the expense of acquiring the ne- 
cessary land, clearing it, its first construction, as well as for its 
maintenance during a designated period. And a Saxon law of 

1 On the arising of his Hability thereto by beginning to build. 

2 That is, after erecting a building, but before the liability of the city has been 
determined by a course of legal proceedings. 

^ Loening, Verwalizi?igsrecht,^. 580; Neumann, Die Steuer und das dffent- 
liche Jnteresse, p. 331 ; Lud wig-Wolf, Sdchsische Gesetzgebung iiber WegebaUy 
p. 96. 



1 6 SPECIAL ASSESSMENTS. [366 

1870 makes the burden of the original construction of new 
roads rest upon such persons only who own property in those 
new building-districts which have made such roads necessary, 

§5. Special Assessments i7i the United Kingdom. Numerous 
English statutes have been cited at various times as precedents 
for the proposed " betterment tax " ^ in the United Kingdom, 
There are, firstly, a number of sewers and drainage acts dating" 
from 1427 by which commissions were appointed to secure the 
construction or repair of " walls, ditches, gutters, sewers, 
bridges, causeys, wears and trenches," which had been dam- 
aged by the inundation of the sea, and to apportion the work, 
or the expenses of the work, upon all whose landed interests re- 
ceived benefits therefrom." ^ These laws, however, sought the 
prevention of injury by means of common works of protection, 
rather than the enhancement of the value of the property af- 
fected. Rates under the later sewers acts scarcely approximate 
our special assessments any more nearly. It is an indispens- 
able condition that a person taxed may by possibility receive a 
benefit from the expenditure, and therefore holders of moun- 
tainous or high ground which can not be surrounded are in 
general exempt. Still the exact measure of the benefit is not 
the measure of the liability to be taxed.^ The question of 
benefit is one of jurisdictional importance only. 

Secondly, comes the act passed in 1667 to regulate the re- 
building of the city of London after the great fire of the pre- 
vious year, as also the several subsequent amendatory acts. 
By section 20 of the first-named statute,* the corporation was 

^ A word said to have been " imported from the United States of America,"^ 
although it would scarcely be recognized by many Americans. 

2 See statute 6 Henry VI., chap. 5 (1427), arid 23 Henry VIII., chap. 5 (1531). 

' Report of the Poor Law Cojftmissioners on Local Taxation^ 1843 (pub- 
lished 1844), p. 65. 

* 19 Chas II., chap. 3, Sec. 20, reads as follows : " And be it further enacted by 
the authority aforesaid, That the numbers and places for all common sewers, drains^ 
and vaults, and the order and manner of paving and pitching the streets and lanes- 
within the said city and liberties thereof, shall be designed and set out by sucb 



367] SPECIAL ASSESSMENTS. 1 7 

empowered to appoint certain persons who were at their meet- 
ing to have authority to design and set out ** the numbers and 
places for all common sewers, drains and vaults, and the order 
and manner of paving and pitching the streets and lanes within 
the said city or liberties thereof," and also "to impose any 
reasonable tax upon all houses within the said city or liberties 
thereof, in proportion to the benefit they shall receive thereby, 
for and towards the new making, cutting, altering, enlarging, 
amending, cleansing and scouring all and singular the said 
vaults, drains, sewers, pavements and pitching aforesaid." 
And by a subsequent section, the actual charges to be imposed 
were to be ascertained in case of disagreement through the 
agency of a jury .^ This portion of the act, at first operative 
for seven years only, was three years later made perpetual,^ 

and so many persons as the said mayor, aldermen and commonalty in common 
council assembled, shall fiom time to time authorize and appoint under their com- 
mon seal or the more pc rt of them; which said persons, so authorized and ap- 
pointed, or any seven or more of them, together with the said surveyors, or some 
or one of them, within his or their precinct respectively, shall at their meeting 
have power and authority 10 order and direct the making of any new vaults, 
drains or sewers, or to cut into any drain or sewer already made, and for the 
altering, enlarging:, amending, cleansing and scouring of any old vaults, sinks or 
common sewers : 

«' For the better effecting whereof, it shall and may be lawful to and for the said 
persons so authorized and appointed, as aforesaid, or any seven or more of them, 
at their said meeting, to impose any reasonable tax upon all houses within the said 
city or liberties thereof, in proportion to the benefit they shall receive thereby, for 
and towards the new making, cutting, altering, enlarging, amending, cleansing and 
scouring all and singular the said vaults, drains, sewers, pavements and pitching 
aforesaid : 

" And in default of payment of the said sums to be charged, it shall and may be 
lawful to and for the said persons so authorized as aforesaid, or any seven or more 
of them, by order and warrant under their hands and seals, to levy the said sum 
and sums of money so assessed, by distress and sale of the goods of the party 
chargeable therewith, and refusing or neglecting to pay the same, rendring the 
overplus (if any be)." I have been bnable to find any record of the actual appli- 
cation of this act." 

^ Ibid., sec. 26. 

2 22 and 23 Charles II., chap. 17. 



1 3 SPECIAL ASSESSMENTS. [368 

with the proviso that all who by May ist, 1672, had been al- 
ready charged under the act should not thereafter " be trou- 
bled, molested or prosecuted for or in respect thereof," The 
authority of the persons thus appointed was *' inlarged " by a 
statute enacted in 1708 which gave them the same powers 
as were vested in commissioners of sewers, and practi- 
cally brought the whole matter under the general acts respect- 
ing sewer rates/ The provisions of these acts, as we shall see, 
in reality contained the germ from which our system of special 
assessments sprang. Unfortunately, that germ was not devel- 
oped in England, and the acts, in consequence, can scarcely 
be regarded as anything more than mere precedent. 

Thirdly, the Metropolis Management Act of 1855' enables 
the vestry boards, whenever it appears that an improvement 
effected is either for the benefit of a particular part of the dis- 
trict, or does not result in equal benefit for the whole district, 
to exempt any part of such district from the levy, or to require 
a less rate to be levied thereon, as circumstances may dictate. 
Another clause of the same act provides for the paving of any 
new street as a private improvement to be effected by the ves- 
try boards as the agents of the abutting property-owners and 
at their expense.. The question presented by this piece of 
legislation is that of narrowing the district, not that of appor- 
tionment within the district. The clause relating to paving is 
similar in nature to the provisions of the Public Health Act of 
1875,* which allows urban authorities, in certain contingencies, 
to undertake the so-called private street improvements — sewer, 
level, pave, metal, flag, channel or make good or to provide 
proper means for lighting the same — and to recover the 
expenses incurred from the owners in default "according to 
the frontage of their respective premises." 

«• ^ 7 Anne, chap. 9. * 

■•^18 and 19 Victoria, chap. 120. 
' Ibid., sec. 105. 
* 38 and 39 Victoria, chap. 55, sec. 150. 



369] SPECIAL ASSESSMENTS. Iq 

And finally, there is that section of the Artizans' Dwellings 
Act, 1882,^ reenacted in the Housing of the Working Classes 
Act, 1890," relating to the compensation to be made for the 
demolition of obstructive buildings. So much of that amount 
is to be apportioned by the arbitrator among the owners of 
the other buildings, respectively, as may be equal to the increase 
in value of such adjoining buildings. The apportionment rests 
on the distinct basis of " the increase in value by reason of 
the demolition of such obstructive buildings." So far, the 
analogy holds good. It departs from the principle of better- 
ment in that the demolition is ordered on the ground of injury 
to the adjoining house, and not on the ground of benefit accru- 
ing to real property from a public improvement. 

An earnest attempt was made to re- introduce the system of 
special assessment for benefit in the Strand Improvement Bill, 
1890, promoted by the London county council.^ The object 
of the bill in question was to provide for an important metro- 
politan improvement in the widening of the Strand between the 
churches of St. Mary-le-Strand and St. Clement Danes, and 
to levy contributions — not to exceed one-half the cost — upon 
a certain area in the neighborhood of the improvement, which 
it was alleged would be increased in value thereby, in the form 
of rent charges to be fixed by an arbitrator after the improve- 
ments should be carried out.. The committee to which the bill 
was referred, after refusing to hear any evidence relating to the 
law of America upon improvement schemes, reported that in 
the case at issue they were of the opinion ** that the principle 
of betterment could not be applied to the improvement pro- 
posed by the bill." The agitation for the measure aroused 
considerable opposition, and the bill was withdrawn after the 
adoption of several emasculating amendments.* The failure of 

^ 45 and 46 Victoria, chap. 54, sec, 8. 

2 53 and 54 Victoria, chap. 70, sec. 38-8. 

^ See Parliamentary Sessional Papers, 1 890, xv., no. 239. 

* See the discussion running through the Times from Dec, 1889, to March, 1890. 



20 



SPECIAL ASSESSMENTS. [370 



this mavement, therefore, makes it impossible to find any sys- 
tem of betterment in present operation in the United Kingdom. 

§ 6. Special Assessments in the United States. The origin of 
special assessments in the United States has already been the 
theme of some theorizing and speculation. One learned jurist 
thinks that " it had its origin and development in the principle 
of local self-government, characteristic of free institutions 
founded by the Anglo-Saxon race — the leaving to each local 
community the due administration of the affairs in which it had 
an exceptive, peculiar and local interest, and in the nature of real 
property, to which it is alone applicable Not the crea- 
tion of a philosophical brain, drafting constitutions and forms 
of government, but the outgrowth of the necessities and vary- 
ing exigencies of local communities."^ According to another 
theory, the system " most probably rose spontaneously out of 
natural considerations of equity and convenience."^ That an 
historical investigation will not bear out these assumptions, it 
is almost needless to add. 

The facts of the matter are quite different. The underlying 
principle of special assessment for benefit first appeared in this 
country in the provisions of a province law of New York in 
the year 169 1. The effective clause of this statute was copied 
almost literally from the twentieth section of the English act 
passed 1667, and re-enacted 1670, to regulate the re-building 
of London after the great fire.'^ The idea was not, as has often 
been erroneously supposed, indigenous upon American soil. 
For twenty years the substance of the plan had been enrolled 
upon the English statute-book. The very words and phrases 

1 George, Ch. J., in Macon vs. Patty, 57 Miss., 378, p. 399. 

'Mr. John Rae, " The Betterment Tax in America," 57 Contemporary Review^ 
p. 644. See also the opinion of Justice Agnew in Washington Avenue, 69 Pa. 
St., 352, 358. 

''Compare the clause given ante, p. 16, with the N. Y. law given post, p. 22. 
Mr. Rae, by an accidental allusion, hmts at the possibility of an English source. 
57 Contemporary Review, 645. 



37 1 ] SPECIAL ASSESSMENTS, 21 

used were borrowed from across the water. The New York 
law remained unrepealed, though inoperative, until 1787, when 
it was adapted more closely to the existing necessities. Only 
in the sense of adaptation can the system be said to have had 
its origin in the exigency and convenience of the American 
colonists. This method of raising revenue for local improve- 
ments long remained peculiar to New York. No noteworthy 
headway seems to have been made in gaining a foot-hold in 
the other commonwealths until after the people began to re- 
cover from the effects of the war of 181 2. The first develop- 
ment of the system, then, corresponds roughly with the move- 
ment for the construction of internal improvements covering 
the years just before and after 1830, and dying out with the 
crisis of 1837. Another tendency to spread to the newer 
commonwealths displayed itself along the later forties and 
early fifties, coinciding to a great extent with the era of prema- 
ture railway building. The final movement began immediately 
upon the close of the late civil war; it is a more general phe- 
nomenon than the earlier ones, and has not yet quite ceased 
its victorious march over the far-western portions of the coun- 
try. It has even made some headway in crossing the Cana- 
dian border.^ The details of these various phases of develop- 
ment form the subject of the succeeding chapter. 

^ E. g., Toronto. 



CHAPTER II. 

HISTORY OF SPECIAL ASSESSMENTS IN THE 
UNITED STATES. 

§ I. New York before i8ij. Taxation by special assessment 
for benefit traces its origin in this country back to the period 
of colonial New York. Other colonies levied local taxes, 
some of which were, perhaps, apportioned according to estim- 
ated benefits, but they were isolated instances of apparently 
fortuitous impositions. Special assessment first developed as 
a revenue system in the province of New York, where, from 
its very inauguration, it has maintained its place upon the 
statute-book, and has spread its branches, one by one, into 
nearly all the commonwealths that have been joined under the 
government of the United States. In New York it has been 
longest in continuous operation ; in New York it has achieved 
its greatest and most extensive results. This alone will justify 
a somewhat detailed description of its origin and development 
in that commonwealth. 

In September, 1691, an act was passed by the assembly of 
the Province of New York entitled " an act for regulating the 
buildings, streets, lanes, wharffs, docks and allyes of the city 
of New York." ^ This statute authorized the mayor and 
aldermen to appoint surveyors and supervisors to see that the 
streets and other public places be conveniently regulated ; to 
obstruct buildings which might narrow the street; and to ex- 
ercise the right of eminent domain under certain prescribed 
conditions. And it continues: 

*' And forasmuch as the Filth and Soil of the said City, lying in the 

* Wm. Bradford, Acts of the Assembly of the Province of New York, p. 12. 
" [372 



373] SPECIAL ASSESSMEXIS, 23 

publick Streets thereof, doth prove a common Nusance unto the In- 
habitants and Traders to and from the said City, and very prejudicial to 
their Heahh : For the removal thereof. Be it further Enacted by the 
Authority aforesaid, That the Numbers and places for all common 
Shoars, Drains and Vaults, and the Order and manner of Paving and 
Pitching the Streets, Lanes and Allyes of the said City, shall be designed 
and set out by the Mayor, Aldermen and Common Council of the said 
City, together with the said Surveyors & Supervisors appointed in 
the manner aforesaid ; and when they assemble, shall have Power and 
Authority to order and direct the making of Vaults, Drains and 
Shoars, or to cut into any Drains or Shoars already made, and for 
the altering, enlarging, amending, cleansing and scouring of any 
Vaults, Sinks or common Shoars. And for the better effecting 
whereof, it shall and may be lawful to and for the said Mayor, 
Aldermen and Common Council, 'together with the said Sur- 
veyors and Supervisors, at their said Meeting, to impose any 
reasonable Tax upon all Houses within the said City, in pro- 
portion to the benefit they shall receive thereby, for and towards 
the making, cutting, altering, enlarging, amending, cleansing and 
scouring all and singular the said Vaults, Drains, Shoars, Pavements 
and Pitching aforesaid. And in default of payment of the said sum 
to be charged, it shall and may be lawful to and for the Mayor and 
Aldermen, Etc., so authorized, as aforesaid, by Order or Warrant 
under their Hands and Seals, to levy the said sum and sums of Money, 
so assessed, by distress and sale of the Goods of the Parties charge- 
able therewith, and refusing and neglecting to pay the same, rend- 
ring the Over-plus, if any be." 

While it is probable that little actual use was made of this 
law, yet it remained "in force in 1772, when Van Schaack pub- 
lished his collection of public acts, and it was practically reen- 
acted after the revolution by the new commonwealth govern- 
ment in April, 1787.^ The new statute, however, differed from 
the old in several points. The latter, it will be noticed, pro- 
vided that the tax be imposed upon " all houses within said 
city in proportion to the benefit they shall receive thereby," 
and left to the mayor and aldermen a wide discretion as to the 

^ Laws of New York, 1787 ; i Greenleaf, 441. 



24 SPECIAL ASSESSMENTS. [374 

method and procedure of fixing the assessment. In these re- 
spects, the act of 1787 was much more definite and explicit. 
The provision reads as follows : 

" And for the better effecting thereof, it shall and may be lawful 
to and for the mayor, aldermen and commonalty of the said city in 
common council convened, to cause to be made an estimate, or esti- 
mates, of the expence of conforming to such regulations aforesaid, 
and a just and equitable assessment thereof among the owners or 
occupants of all the houses and lots intended to be benefited thereby 
in proportion, as nearly as may be, to the advantage which each may 
be deemed to acquire respectively. And in order that the same may 
be safely and impartially performed, the said common council shall, 
from time to time, appoint five sufficient and disinterested freeholders 
for every such purpose, who, before they enter into the execution of 
their trust, shall be duly sworn before the said mayor or recorder, to 
make the said estimate and assessment fairly and impartially, accord- 
ing to the best of their skill and judgment ; and a certificate in writ- 
ing of such estimate and assessment being returned to said common 
council and ratified by them, shall be binding and conclusive upon 
the owners and occupants of such lots so to be assessed respectively ; 
and such owners or occupants respectively, shall thereupon become 
and be liable and chargeable, and are hereby required to pay such 
person as shall be authorized by the said common council to receive 
the same, the sum at which such house or lot shall be so assessed, to 
be employed and applied for and towards the making, altering, amend- 
ing, pitching, paving, and scouring such streets, and making, construct- 
ing, and repairing such vaults, drains and sewers as aforesaid ; and in 
default of payment thereof, or any part thereof, it shall and may be 
lawful to and for the mayor, recorder and aldermen of the same city, 
or any five of them, of whom the mayor or recorder always to be 
one, by warrant under their hands and seals, to levy the said sum or 
sums of money so assessed, by distress and sale of the goods and 
chattels of the owner or occupant of such house or lot so assessed, 
and refusing or neglecting to pay the same ; rendering the overplus, 
if any there be, after deducting the sum assessed, and the charges 
of distress and sale, to such owner or occupant respectively, or their 
legal representatives." 



375] SPECIAL ASSESSMENTS. 2$ 

The assessment was no longer to be laid upon all houses 
within the city, but only upon such of them as were "intended 
to be benefited." Moreover, since the estimate and assess- 
ment were to be made before the contemplated work, the 
council were authorized to make a further levy in case the 
sum already collected should prove insufficient. 

Notwithstanding the general powers conferred, the mayor 
and aldermen were reluctant to employ their authority for 
specific cases. As a consequence, they were constantly asking 
the legislature to re-affirm the grant, a request with which 
that body complied by passing various acts applying the same 
principles to particular municipal improvements. Acts of this 
character passed in 1793, in 1795, in 1796, in 1801, and in 
1807, during which time similar powers were also granted one 
or two other municipal corporations.^ The act of 1807 made 
one important innovation: it appointed three commissioners 
for a term of four years with exclusive power to lay out streets, 
squares and public roads north of a designated line, the ex- 
pense incurred to be assessed upon the property-owners in- 
tended to benefited. 

§ 2. New York, 18 1 J to 18^1. By 181 3, the system of 
taxation by special assessment had progressed so far that the 
revised laws of that year authorized its application to the four 
cities of Albany, Hudson, Schenectady, and New York.^ Of 
the four, New York had by far the most liberal and carefully 
drawn charter — an instrument which up to the recent consoli- 
dation act persisted as the basis of all its most important corpor- 
ate powers. The charter made complete provision for supply- 
ing the financial needs of the city arising from the expenditures 
for local improvements. Under it there were two separate pro- 
cedures for imposing special assessments; one for the opening 

'^ Laws of New York, I'jgs, 3 Greenleaf, 52; ibid., i7gs, 3 Greenleaf, 244; 
ibid.,ijgb, 3 Greenleaf, 332; ibid., 1801, chap. 129, p. 308; ibid., 1807, chap. 
ii5'»P- 271. 

' Laws of New York, 2 R. L., chapters 51, 72, 76 and 86. 



26 SPECIAL ASSESSMENTS, [376 

of streets and public places where the power of eminent domain 
is also involved; the other for the remaining street improve- 
ments — pitching and paving the streets, the construction of 
wharves and slips, sewers and drains, wells and pumps. For the 
former, action through commissioners of estimate and assess- 
ment duly appointed by the supreme court of judicature was 
necessary, their report to be confirmed by the same tribunal. 
For the last-named purposes, the council could itself appoint 
the assessors and confirm the report. In each case, the assess- 
ment was to be a lien upon the property benefited, and if the 
estimate proved too small, a re-assessment of the deficiency 
was permitted. Exclusive of a few minor changes, these 
charter provisions governing the exercise of the power of 
special assessment remained substantially intact until 1839, 
In that year and the year following, acts were passed by the 
legislature amending the procedure for making the estimate as 
previously established.^ Now, if interested parties objected to 
the report, the proceedings were to be ordered discontinued, 
and future estimates were to be made by commissioners 
selected one from names supplied by the corporation, one from 
names supplied by the parties interested, and one from the two 
lists combined. These commissioners were to state, in their 
report, each item of benefit and of damage separately instead 
of the resulting balance only, and were required to give notice 
by publication for hearing objections to the proposed assess- 
ment. The costs for the commissioners were to be taxed by 
the court. The act of 1840 also prohibited the commissioners 
or assessors from assessing upon any house, lot, improved or 
unimproved lands, more than one-half the value of. such prop- 
erty as valued by the assessors of the ward in which it might 
be situated. 

'^Laws of New York, i8^g, chap, 209, p. 182; ibid., 1840, chap. 326, p. 272. 
The minor acts menlioned were: Laws of New York, 1816, chap. 81, p. 77 ; 
ibid., 1816, chap. 160, p. 172; ibid., 18/8, chap. 2lo, p. 196. Also Laws of 
New York, 1841, chap. 171, p. 143. 



377] SPECIAL ASSESSMENTS. 2/ 

This, in brief, was the status of the system at the time when 
the convention was called to frame the constitution of 1846. 
While that body did not take any positive action giving dis- 
tinct recognition to the power of special assessment, except in 
Art. VIII, Sec. 9, which made it the duty of the legislature to 
provide for the organization of cities and incorporated villages, 
and " to restrict their power of taxation, assessment, borrow- 
ing of money," etc. yet there was a small element among the 
delegates hostile to the continuation of the system as it ex- 
isted. This element, under the lead of Mr. Henry F. Murphy, 
a New York lawyer representing Kings county, introduced 
two propositions upon the subject, which were referred to the 
committee of the whole.^ They were: 

Sec. 2. " No local assessment for any improvement in any city or 
village shall be laid unless a majority of all the owners of the lands 
to be assessed shall apply for such improvement, nor unless such im- 
provement shall be ordered by a vote of two-thirds of the common 
council or board of trustees of such city or village." 

Sec. 2. "No assessment for any improvement in any city or 
village shall be laid otherwise than by general tax upon the taxable 
property of such city or village, levied and collected with an annual 
tax for other expenses." 

Neither of these propositions was reported back to the con- 
vention. Had the one been incorporated into the constitution, 
the system of special assessment for benefit would have come 
to an untimely end ; had the other been adopted, its useful- 
ness would have been forever restricted. It is interesting in 
this connection to note the reasons for this opposition as they 
were set forth at length in a speech by Mr. Murphy.^ He be- 
lieved that the practice of assessing in any form for special 
benefit for any public improvement was unsound in principle, 
because it substitutes an arbitrary instead of a fixed rule of 

^ Debates in the Constitutional Convention, 1846, Argus edition, p. 357. 
' Debates, Argus edition, p. 810. 



28 SPECIAL ASSESSMENTS. [378 

taxation. It is taxation; and taxation, to be just, should be 
equal. No public improvement can be made without being of 
special advantage to some locality ; consequently the assump- 
tion that there is, in particular instances, a special local benefit, 
is false. ' It follows that the improvements which our corpora- 
tions are continually making, involving the taking of property 
and taxation for the purpose of advancing the interests of a 
few individuals, are not public improvements, and should not 
enter into the consideration of this question. The cases which 
we are to regard are those in which the public are primarily 
interested. The sure test of an improvement being public is, 
that it may be paid for out of the public treasury; that the 
necessity for it is such that the whole public is willing to bear 
the expense of it. But the argument of Mr. Murphy was 
barren of result. 

The complaints at that time were much the same as they 
are to-day. The distinction between assessments and taxes 
had been formally recognized by the New York courts at least 
as early as 1813.^ From 181 3 on, taxation by special assess- 
ment was constantly involved in numerous cases in which the 
constitutionality of the exercise of the power was scarcely 
questioned. The point of constitutionality was first vigorously 
attacked in Livingston vs.. The Mayor, etc., of New York, and 
n the opinion of the court, it was as vigorously upheld.' This 
decision, however, was made under the old constitution. The 
question that now arose was this : Had the new constitution 
of 1846, notwithstanding all omission of direct prohibition, 
put into force any restrictions upon the legislature which 
might be expanded so as to cover special assessments? The 
whole significance of the case of the People vs. The Mayor, 
etc., of Brooklyn, decided in 1851, and reversing a decision 01 
the next inferior tribunal, lies in the fact that it answered this 

1 The Mayor, etc., of New York vs. Cashman, 10 Johns., 96. 

2 8 Wend., 85. ^^ 



379] SPECIAL ASSESSMENTS. 29 

question in the negative, once and for all time, so far as the 
commonwealth of New York is concerned.^ The masterly 
logic of Judge Ruggles permanently disposes of all objection 
on the score of taking private property without just compen- 
sation, and places the system of special assessment firmly and 
solidly upon the foundation of the taxing power. The courts 
henceforth had to deal, not with the constitutionality of the 
legislative power, but with the interpretation of statutory pro- 
visions. 

§ 3. Neiv York since i8ji. Subsequent legislation has had 
to do chiefly with three points in the development of the sys- 
tem in New York City, namely : (i) the limitation of the cor- 
poration in levying the assessment; (2) the distribution of 
the power of special assessment among the various municipal 
authorities; and (3) a statutory remedy for the taxpayer for 
fraud or error. 

First. An act of 1852 made permanent the existing grades of 
the streets, and required for further changes the consent of the 
owners of two-thirds of the abutting land.^ In 1865, assess- 
ment bonds were authorized by which contractors might be 
paid as certain work progressed, the sum advanced to be later 
re-imbursed the city from the proceeds of the assessment.^ A 
law of the same year permitted only one-half of the expense of 
regulating, grading and improving the streets in the most 
northerly portion of the city, to be imposed upon the property- 
owners benefited;* but two years afterwards, the commission- 
ers were again allowed to assess the parties benefited by street 
openings to the entire extent that they might deem them 
benefited thereby.^ A legislative enactment of 1869 limited 

^4 N. Y., 419, over-ruling same case, 6 Barb., 209. 
"^ Laws of New York, 18^2, chap. 52, p, 46. 
^ Laws of New York, 1863, chap, 381, p. 715. 
^ Laws of New York, 1863, chap. 565, p. 1136. 
^ Laws of New York, 1867, chap. 697, p. 1748. 



30 SPECIAL ASSESSMENTS. [380 

the assessment for opening, widening or extending the streets 
that had been mapped out under the act of 1807, ^^ ^^^^ more 
than one-half the total cost of the improvement — if south of 
Fourteenth street, such part as might be deemed just and 
reasonable — provided always that such sum did not exceed 
one-half of the market value of such lands and premises/ 
In 1872, the provisions relating to the issue of assessment 
bonds, for the purpose of part payment for work in progress, 
were made general for all local improvements where the ex- 
pense was to be assessed in whole or in part upon the property- 
owners benefited, and assessment for repaving any street or 
public place prohibited upon property upon which an assess- 
ment had once been paid for the original paving of the same 
street or public place."^ This latter prohibition was limited in 
1873, so as to allow such assessment for repaving if petitioned 
for by the owners of a majority of the front feet of the real 
property on the line of the improvement.^ Finally, a series of 
acts beginning 1876, extended the time for the payment of 
pending assessments, and permitted payment by installments 
with interest at a designated rate.* 

Second. Proceedings for levying special assessments were at 
first to be instituted uniformly by the common council. In 
1853, a " bureau of arrears" was established, with the duties 
previously performed by the street commissioner and comp- 
troller in relation to advertising, selling and leasing lands for 
assessments, taxes and regular rents of Croton water and the 
redemption of the property sold.^ In 1857, the legislature 
created the offices of " commissioners of taxes and assess- 
ments " to have charge of assessments for local improvements 

^ Lmvs of New York, iS6g, chap. 920, p. 2406. 
"^ Laws 0/ New York, i8y2, chap. 580, p. 1412. 

3 Laws of New York, /<?7J, chap, 335, p. 484. See also ibid., 1873, chap. 476. 
^ Laws of New ]'(?r/', y(S'76, chap. 103, p. 82; ibid., 1877,(^2.'^. 159; ibid,^ 
1878, chap. 255. 

^ Laws of New York, 18 jj, chap. 579, p. 1065. 



381] SPE CIAL A SSESSMENTS. 3 I 

directly under control of the council.^ In 1865, the whole 
matter of sewerage and drainage was given over to the ex- 
clusive direction of the Croton aqueduct board, with power to 
institute special assessments to defray the expenses incurred, 
and during the same year, the commissioners of the Central 
Park secured the sole care, management and control of the 
streets mapped out in a certain specified district — a juris- 
diction repeatedly enlarged by subsequent legislative action 
until 1870, when the department of public parks succeeded to 
all the powers and duties of the commissioners of the Central 
Park/ The year 1870, also saw the department of public 
works receive the powers hitherto belonging to the street 
commissioner and the Croton aqueduct board,* as well as the 
establishment of a board of street openings.^ By an enact- 
ment of the succeeding legislature, the board of health secured 
power to institute proceedings for special assessment for the 
drainage of lands.^ The act to reorganize the local govern- 
ment of the city of New York, passed 1873, made but minor 
changes ; the most important of these was the stripping of the 
department of public parks of its authority over certain streets 
and boulevards and the conferring of that authority upon the 
department of public works. 

Third. A statutory remedy for an unjust assessment was 
provided by the legislature for the first time in 1858.^ During 
the session of that year, following as it did the year of the great 

1 Laws of A^£w York, i8^y, chap. 677, vol. ii., p. 497. 

"^ Laws of New York, 186^, chap. 381, p. 715. 

^ Laws of New Kcr/^, /5'65', chap. 564, p. 1 133; ibid., 186^, chap. 565, p. 
1 136; ibid., 1866, chap. 367, p. 818; ibid., 1867, chap. 697, p. 1748; ibid., iS'jfO, 
chap. 137, p. 366. 

^ Laws of New York, /(J/o, chap, 137, p. 366. 

* Laws of New York, iSyo, chap. 383, p. 881. 

^ Laws of New York, i8yi, chap. 566, p. 1202. 

■f Laws of New York, 187 j, chap. 335, p. 484. 

^ Laws of New York, 18^8, chap. 338, p. 574. 



32 SPECIAL ASSESSMENTS, [382 

banking crisis, a law was enacted *' in relation to frauds in as- 
sessments for local improvements in the city of New York, " 
imposing upon the supreme court the duty of hearing petitions 
for the vacation of any assessment on account of ** fraud or 
legal irregularity," and in case the alleged fraud or legal irre- 
gularity was proved, to issue an order annulling the assess- 
ment and the lien created thereby. But a judgment of this 
character was not to discharge the property-owner from liabil- 
ity to a re-assessment according to law for such amount as 
would otherwise have been justly chargeable. The legal effect 
of this action was modified in 1870.^ While hitherto the 
whole charge was to have been removed whenever the assess- 
ment had been unlawfully increased, the judge might now 
simply reduce the assessment upon the lands of the aggrieved 
party by deducting the proportionate sum by which it had 
been so increased ; nor was any fraud or irregularity in the 
proceeding^: to collect a special assessment by sale of the as- 
sessed premises to give grounds for anything more than a 
mere setting aside of such sale, leaving the respective rights 
and liabilities of the parties assessed and the municipal corpor- 
ation as unimpaired as if such sale had not been made. Two 
years later, a new law prohibited the court from vacating or 
setting aside an assessment for any omission to advertise or 
irregularity in advertising any proceeding relative to the im- 
provement, for any omission of any officer to perform a duty 
imposed upon him, for any defect in the authority of any de- 
partment acting in connection with the assessment, or for any 
irregularity or technicality except only in cases in which fraud 
should be shown, or in which the cost of repaving should be 
charged against property-owners who had been assessed for 
the original paving.^ In 1874, the law of 1858 was amended 
so as to allow the vacation of assessments for " fraud or sub- 

"^ Laws of New York^ ^Syo, chap. 383, p. 881. 
"^ Laws of New York, iSys, chap. 580, p. 1412. 



383] SPECIAL ASSESSMENTS. 33 

stantial error" instead of for ** fraud or legal irregularity."^ At 
the same time, the statutory remedy was made the exclusive 
remedy of the taxpayer, and the act of 1872 made to apply to 
all improvements whatsoever, already completed or then being 
made or performed, or which should thereafter be made or 
performed. Again in 1880, the legislature itself appointed 
commissioners to act as a board for the revision and correction 
of all pending assessments — an act intended to relieve the 
pressure upon the judiciary.^ It declared, furthermore, that no 
existing provision of law should be taken to permit any court 
to vacate or reduce an assessment, in fact or apparent, there- 
after confirmed, whether void or voidable, otherwise than to 
reduce such assessment to the extent that it should be shown 
to have been in fact increased in dollars and cents by reason 
of fraud or substantial error; and in no event should that pro- 
portion of such assessment which is equivalent to the fair 
value of any local improvement, with interest from the date of 
confirmation, be disturbed for any cause. 

Thus far had the system of taxation by special assessment 
been evolved in its application to New York City at the time 
of the consolidation act of 1882. That law made no great in- 
novations.^ Its purpose was to reorganize the municipal gov- 
ernment, and to codify the law relating to that city ; the details 
of the system under consideration were not materially altered, 
and we shall have occasion in another part of our work to 
examine it as a fully developed whole. In the meantime, the 
commonwealth of New York had not confined its grants of 
powers of special assessment to its metropolis alone. One by 
one, the other local authorities had similar provisions in- 
corporated into their charters, until at present the system of 
taxation by special assessment for benefit is the foundation 

^ Laws of New York, 1S74, chap. 312, p. 366. 
2 Laws of New York, 1880, chap. 550, p. 798. 
2 Laws of New York, 1882, chap. 410. 



^4 SPECIAL ASSESSMENTS. [384 

upon which local improvements are erected in every municipal 
corporation within its jurisdiction. 

§ 4. Massachusetts. An attempt has been made to find a pre- 
cedent for special assessment laws in Massachusetts, in spme 
of the enactments of the old general court during the colonial 
period.^ This attempt will not endure the light of criticism. 
The order of May 19th, 1658,^ by which a committee, appointed 
to lay out a way from Roxbury to Boston Farms, were "to 
judg what is meete satisfaction to the proprietors for the way 
and that they have power to impose an aequal part upon such 
of Boston or other tounes, as shall have benefit of such way," 
presents a question of distributing local burdens among local 
authorities, and not that of special assessment upon individ- 
uals. Similarly the laws of 1692^ and 1760,* respecting the 
construction of streets in Boston after devastation by fire, 
according to which certain expenses were to be assessed by a 
jury " in proportion to the benefit or conveniency any shall 
have thereby," evidently contemplated charging those only 
whose property had been increased by strips of land taken 
from other property-owners. The many sewer and drainage 
acts beginning 1 702, proceeded upon the theory that prevailed 
in England at that time ; the sewers were regarded as the 
private property of abutting land-owners, who were authorized 
to enforce a proportionable payment toward their cost from 
any person who should subsequently cut into them. Not 
until 1834 did the main sewers become public property, thus 
furnishing a basis for true special assessments.* Of all the 

^ Dorgan vs. City of Boston, 12 Allen, 223, 

* Massachusetts Colonial Records^ iv., pt. I, p. 327. 

'4 William and Mary, chap, i, Massachusetts Charter, p. i. 
*33 Geo. II., chap. 3, ibid., p. 387. 

* Wright vs. City of Boston, 9 Cush., 233. For the acts themselves see I Anne, 
chap. 4, and 8 Anne, chap. 2, in Massachusetts Charter, pp. 142 and 161 ; also 
Province Laws, 3 Geo. III., chap. 27; Statutes 1841, chap. 115; Statutes 18^^, 
chap. 105. 



385] SPECIAL ASSESSMENTS. ^5 

early laws of Massachusetts, that which most closely ap- 
proximates a provision for special assessment was enacted in 
1781.^ This was an act for widening- and amending the 
streets, lanes and squares in that part of the town of Charles- 
town which had lately been laid waste by fire. It confirms 
the plan of a committee to lay out the streets in question, and 
provides that the parties interested join with the committee in 
the appoinment of appraisers, who shall not only consider the 
advantages resulting to persons part of whose land is taken, 
but also determine the sum which the owner of any estate 
benefited by the execution of the plan ought to pay, for 
which sums the owners would then become liable. But as a 
system for raising revenue, special assessment was not firmly 
planted in Massachusetts until 1866, when the constitutionality 
of a law passed for that purpose the previous year was 
definitely affirmed.* 

§5. TJie Re mainivg New E7tgland Commonwealths. Of the 
remaining New England commonwealths, Rhode Island has 
maintained the constitutionality of special assessments since 
1856. In that year its courts upheld a law enacted in 1854 
authorizing the city of Providence to lay out, enlarge or 
straighten streets, no longer according to the old method, but in 
a manner provided in the act, namely, to assess not to exceed 
one-half of the expenses incurred upon persons interested in 
estates adjudged, in the first instance, by a board of commis- 
sioners, to be benefited by the improvement to that extent.' 
Similar charges, such as for building sidewalks or for construct- 
ing drains, had previously been authorized in Providence, but 
these were regarded chiefly as sanitary measures. 

In Connecticut the power to levy special assessments for 
street improvements was judicially affirmed in 1854.* At that 

* I Massachusetts Special Lazt^s, p. 21. 

' Dorgan vs. City of Boston, 12 Allen, 223, affirming act 1865, chap. 159. 

'Matter of Dorrance Street, 4 R. I., 230. 

♦Nichols w. Bridgeport, 23 Conn., 189; Cone vs. City of Hartford, 28 Conn., 363. 



36 SPECIAL ASSESSMENTS. [386 

time provisions of like character were contained in most, if not 
all, of the city charters in the commonwealth, either in respect to 
the laying out or improvement of streets or in respect to public 
parks, sidewalks, sewers and other municipal purposes. 

The highest court of Vermont decided in 1872 that municipal 
corporations might assess individuals for benefits derived from 
sewers, sidewalks, aqueducts, et cetera^ The laws of New 
Hampshire provided for the collection of similar charges for 
the construction of sewers in iS/o,'^ and for sidewalks and 
street improvements five years later.' In Maine, too, a law of 
1872 authorizes the assessment of damages arising from the 
laying out, widening or altering any new street in any city 
upon the owners of adjacent lots " in proportion as such lots 
are benefited or made more valuable by such laying out, widen- 
ing, alteration or discontinuance."* 

§ 6. Pennsylvania. Pennsylvania had something very simi- 
lar to a system of special assessment enrolled upon her statute- 
book at the beginning of last century. By a province law of 
1700, commissioners or assessors were to be appointed by the 
governor with four of his council for regulating the streets and 
water courses, the pitching, paving and graveling thereof; the 
clearing of docks and repairing landing places and bridges in the 
towns; and to defray the charge of pitching, paving, graveling 
and regulating the said streets, and scouring and cleaning said 
docks, each inhabitant concerned was to pay towards the same 
in proportion to the number of feet of his lots or landings ad- 
joining on each or either side of the said streets or docks.** A 
subsequent act of 1769 appointed commissioners for regulat- 
ing, pitching, paving and cleaning the highways, streets, lanes 

1 Allen vs. Drew, 44 Vt., 174, 

2 New Hampshire General Laws, 1878, chap, 78, sec. 7. 
' Idid.y chap. 78, sec. 3. 

* Maine Revised Statutes, 1884, chap. 18, sec. 31. 

5 Quoted by Read, J., dissenting, in Hammett vs. Philadelphia, 65 Pa. St., I46» 



-,37] SPECIAL ASSESSMENTS. 37 

and alleys, and for regulating, making and amending the water 
courses and common sewers within the inhabited and settled 
parts of the city of Philadelphia; but the expense was to be 
defrayed by a special tax on the basis of the general property 
tax/ And in 1790, the cost of street improvements was 
brought expressly within the general property tax.'^ While 
the assessment of abutting property-owners for the expense of 
street improvements thus lapsed in Philadelphia proper, yet 
the various suburbs, as they become incorporated, retained the 
old system. Such provisions are found in the acts incorporat- 
ing Northern Liberties in 1803,^ Spring Garden in 18 1 3,* and 
Kensington in 1844.'^ Not until the consolidation act of 1854 
were special assessments for benefit for street improvements 
again introduced into Philadelphia,^ and even then, scarcely as 
a survival of the ancient colonial practice. For in the mean- 
while, the city of Pittsburgh had been authorized by acts passed 
in 1832 and 1833 to apportion the cost of opening streets upon 
the lot-owners thereby benefited, and to make them a lien upon 
the property, and these acts had been declared to be constitu- 
tional by a decision handed down the following year.'^ In this 
decision, moreover, we have the statement of Justice Rogers 
that the principle of assessment for benefit was at that time a 
new feature introduced into the Pennsylvania law from New 
York. The constitutionality of such laws has been repeatedly 
affirmed by Pennsylvania courts, so that the doctrine is now 
solidly established in that commonwealth.^ 

* Carey and Bioren's Pennsylvania Laws, ^7^9^ chap. 594. 

2 Carey and Bioren's Pennsylvania Laws, ijgo, chap. 1498. 
' Carey and Bioren's Pen nsylvania Laws, i8oj, chap, 2354. 

* Pennsylvania Laws, i8ij, chap. 3703. 
6 Pennsylvania Laws, 1844, chap. 215. 

« Pennsylvania Laws, i8j4, chap. 16, sec. 40. 
^McMasters vs. The Commonweahh, 3 Watts, 294. 

® Schenley vs. City of Allegheny, 25 Pa. St., 128; City of Philadelphia w. Tryon, 
35 Pa. St., 401 ; Schenley vs. Cily of Allegheny, 36 Pa. St., 29. 



38 SPECIAL ASSESSMENTS, [388 

§ 7. The Remaining North Eastern Coimnonzvealths. The 
system of special assessment very naturally spread from its 
first abode in New York to the neighboring commonwealth of 
New Jersey. The grant to the city council of Newark under 
the charter of 1836, not long after the validity of such laws 
was first attacked, was held to be a perfectly proper legisla- 
tive function and in no way repugnant to the organic law of 
the commonwealth.^ This decision was re-affirmed a few 
years later.'^ The system has been widely developed in New 
Jersey, although of late years, since the reckless abuse of that 
power by some of her municipalities, not so much discretion- 
ary power has been left to the local authorities. 

In Maryland the first judicial recognition of special assess- 
ments came in 1847.^ ^^ ^'^^ then held that the legislative act 
of 1838, giving the city of Baltimore authority to impose upon 
the benefited property- owners the expenses of opening new 
streets and the ordinances passed to carry that authority into 
effect, did not offend against the constitutional provision pro- 
hibiting the taking of private property for public purposes 
without just compensation. The court sustained the law not 
only under the taxing power, but also under the right of emi- 
nent domain, and they quote copiously from the New York 
decisions, from which commonwealth the doctrine had evi- 
dently been derived. 

Taxation by special assessment has also received the sanc- 
tion of congress so far as to adopt it for operation in the Dis- 
trict of Columbia. By an act of 1865 power was conferred 
upon the corporation of the city of Washington to charge the 
expense of making street improvements upon the proprietors 
of adjacent lots, and this delegation of authority was supported 
by the supreme court of the United States as inseparable from 

' The State vs. Dean, 23 N. J. L., 335. 

2 The State vs. City of Newark, 27 N. J. L., 185. 

'Alexander and Wilson vs. The Mayor, etc., of Baltimore, 5 Gill, 383. 



389] SPECIAL ASSESSMENTS. 30 

the exclusive legislative power over the district vested in 
congress by the federal constitution.^ The same method of 
raising revenue has since been in constant use at the Capital 
City. 

As early as 1857, the legislature of Delaware granted the 
city of Wilmington the power to levy special assessments 
for benefits resulting from certain designated street improve- 
ments.^ A detailed procedure was prescribed at the same 
time. The point of constitutionality has not yet been raised 
in the courts. 

Special assessments have also been provided for in West 
Virginia by the code of 1868.^ The statute was under judi- 
cial interpretation in 1876, but its validity was not considered.* 

§ 8. The Southern Commonwealths. When we come to inves- 
tigate the subject of special assessments in the South, we find 
the system cropping out about the sam.e time in two widely 
separated commonwealths — in Kentucky and in Louisiana. 
The course of legislation and of judicial interpretation in Ken- 
tucky has not been altogether harmonious. In 1837, the stat- 
ute of 1 83 1, amendatory of the charter of incorporation of the 
city of Louisville, and authorizing such impositions, was de- 
clared to be unconstitutional and void.^ The court argued that 
such charges, not being general and according to a fixed valu- 
ation, were not taxes, and not being taxes, they thus constituted 
an attempt to take property without adequate compensation. 
Not until three years later was a similar authority as applied 
to the city of Lexington upheld by the court, and then only by 
hypothetical construction of a quasi-municipal corporation out 

iWillard vs. Presbury, 14 Wall., 676. 

' Delaware Revised Statutes^ 1874, chap. 73, sees. 63 to 68. 

* Chap. 47. For sidewalks only. 

* Douglass vs. Harrisville, 9 W. Va., 162. 

^ Sutton's Heirs vs. City of Louisville, 5 Dana, 28 ; quoted with approval in 
Rice vs. Danville, Lancaster and Nicholasville Turnpike Co., 7 Dana, 81. 



Q SPECIAL ASSESSMENTS. [39O 

of each separate square in the city.' In the decision of the 
court, Chief Justice Robertson says that all the streets had 
been made prior to the incorporation of the city ; that most of 
them had been graded and paved prior to the year 1826, and 
always in the mode then objected to as unconsitutional ; and 
that he consequently deferred to precedent.^ However this 
maybe, the course of judicial interpretation was turned so as to 
permit the continuance and extension of the system previously 

threatened.^ 

In Louisiana special assessments date from 1832. The leg- 
islature of that year thought proper to provide that the costs 
and expenses of opening new streets in the city of New Or- 
leans which had been formerly, under the act of incorporation 
of the city, paid out of the public funds in the city treasury, 
should be thereafter paid by what are called assessments for 
benefits on the owners of lots adjacent to the newly opened 
street.'' This act was sustained in the courts in 1854, while, at 
the same time, a subsequent act of 1847, which merely repeated 
the old provisions as to taxation, was held to be unconstitu- 
tional under the new constitution of 1845, as lacking equality 
and uniformity.^ The power was, however, soon judicially 
recognized even under the new constitution as to both street 
improvements and the construction of levees, for which pur- 
poses an extensive application of special assessments has been 

made.* 

The Mississippi courts in 1853 refused to declare unconsti- 

1 City of Lexington vs. McQuillan's Heirs, 9 Dana, 513. 

^Ibid., p. 523. 

s See City of Covington vs. Boyle, 6 Bush, 204 ; Bradley vs. McAtee, 7 Bush, 
667 ; Caldwell vs. Rupert, 10 Bush, 179. 

* Municipality No. 2 vs. White, 9 La. An., 446, p. 450- 

6 Ibid. 

6 See Municipality No. 2 vs. Dunn, 10 La. An., 57 ; Yeatman vs. Crandall, 11 
La. An., 220; Wallace vs. Shelton, 14 La. An., 498; Surgi vs. Snetchman, il 
La. An., 387 ; City of New Orleans Praying for Opening of Streets, 20 La. An., 497- 



390 



SPECIAL ASSESSMENTS. 



tutional the charter of Aberdeen of 1846, giving power to the 
city authorities to levy an assessment upon any lot or lots 
for the purpose of making improvements on the streets in 
front of such lots/ The same principle was later enunciated 
in connection with the levee taxes''^ and again after the close 
of the civil war in relation to the provisions of the constitution 
then adopted.^ A recent decision of the highest common- 
wealth tribunal reads : " We believe the power exists : it has 
been recognized as an existing power in the state by the 
public, the legislature, and by at least three decisions of this 
court"^ 

In the charter granted Mobile in 1866, the legislature of 
Alabama attempted to confer power to make special assess- 
ments for street improvements according to the frontage of 
abutting lots. When issue was taken with this provision be- 
fore the courts in 187 1, it was held that the clause in the con- 
stitution of 1868 requiring all taxes to be assessed in exact 
proportion to the value of the property upon which it is 
levied, made that portion of the charter void and of no effect.^ 
This ruling has just been explicitly reversed. The question 
arose whether the act of 1885 giving Birmingham the power 
of special assessment for the construction of sidewalks was in 
contravention of the constitution adopted in 1875. The court 
argued that, inasmuch as no such thing as local assessments 
for commonwealth taxation was known either in 1875 or at 
any other time, the constitutional limitations attach exclus- 
ively to taxation for commonwealth purposes and do not affect 
assessments levied by municipal authorities.^ 

1 Smith vs. Corporation of Aberdeen, 25 Miss., 458. 

2 Williams 7/J. Cammack, 27 Miss., 209 ; Alcorn vs. Hamer, 38 Miss., 652. 

3 Daily vs. Swope, 47 Miss., 367. 
♦ Macon z/.r. Patty, 57 Miss., 378. 

^ Mayor, etc., of Mobile vs. Dargan, 45 Ala., 310, and Mayor, etc., of Mobile 
vs. Royal Street Railroad Co., 45 Ala., 322. 

^ Mayor, ^/r., of Birmingham vs. Klein, 89 Ala., 461. 



42 SPECIAL ASSESSMENTS. [3^3 

Similarly in Texas, the charter of Galveston in 187 1 provid- 
ing for a system of special assessment for benefit was held to 
be a valid grant by the legislature in a decision handed down 
in 1875/ The same attitude was again taken by the court in 
respect to the charter given to Houston in 1883, when the 
latter was resisted as unconstitutional.^ 

The highest appellate court of Virginia, in the middle of 
the seventies, upheld an assessment for paving levied by the 
city of Norfolk according to the front foot.^ That was the 
first time the point of constitutionality had been raised in that 
commonwealth, but the conclusion then reached has since been 
several times affirmed.* 

So also in Florida an act of 1877 conferring upon any city 
or town council power to make specified street improvements 
and " to charge upon those benefited such reasonable assess- 
ments as may be agreed upon," or in case of disagreement as 
ascertained and fixed by five discreet freeholders, has been sus- 
tained as entirely within the competency of the legislature.* 

The courts of Georgia have read the constitutional limita- 
tions upon taxation as referring to general taxation only, and 
have therefore upheld the constitutionality of an act passed in 
1881 amending the city charter of Atlanta so as to allow spe- 
cial assessments for benefits resulting from street improve- 
ments.^ 

In North Carolina, too, it has been held that the class of 
taxes imposed only on those owners of property who derive a 
special benefit from a local improvement " are not within the 

1 Roundlree vs. City of Galveston, 42 Tex., 612. 

2 Taylor vs. Boyd, 63 Tex., 533. 

3 Norfolk City vs. Ellis, 26 Gratt., 224. 

* Sands vs. City of Richmond, 31 Gratt., 571 ; R. and A. R. R. Co. vs. Lynch- 
burg, 81 Va., 473. 

^ Edgerton vs. The Mayor, etc., of Green Cove Springs, 19 Fla., 140. 

•'Hayden vs. City of Atlanta, 70 Ga., 817 ; also First M. E. Church vs. City of 
Atlanta, 76 Ga., 181. 



393] SPECIAL ASSESSMENTS. ^3 

[constitutional] restraints put upon general taxation." ^ These 
decisions, it is true, were occasioned by the act of 1881 pro- 
viding for the fencing of townships at the expense of those 
benefited, but the reasoning and language employed by the 
court are most general in their character. 

In South Carolina, on the other hand, an act of the legisla- 
ture authorizing the assessment of the expense of opening a 
street upon the lot-owners benefited was declared unconstitu- 
tional.' Chancellor Dunkin maintained that the charge could 
not be included under the right of eminent domain, since no 
land was taken; that, lacking equality and certainty, it could 
not be a tax ; and that the whole proceeding was at variance 
with the general principles of taxation and without sanction in 
the usage of the country. He repelled any analogy which 
might be drawn from an earlier act of 1764 incorporated into 
the city charter of 1783, since the latter applied to sewers, 
drains and sidewalks only under the power to abate nuisances, 
and carefully preserved the cardinal principle of assessing 
*' ratably and proportionably to the value of lands and 
houses." The act of 1850 introduced a new element by di- 
recting the commissioners in making the assessment to " take 
into consideration the advantages to be derived from the im- 
provement by the proprietors respectively." It is this new ele- 
ment to which the court denied their sanction. 

Several of the earlier decisions of the courts of Arkansas seem 
to imply assent to the doctrine of special assessments/ but 
whatever force these cases may have been thought to bear, has 
been completely undermined by a subsequent ruling. In 
1874 the framers of the new constitution expressly recognized 
the principle in question,* but mis-stated the idea in rather con- 

1 Cain vs. Commissioners, 86 N. C, 8 ; afifirmed in Shuford vs. Commissioners, 
86 N. C, 552. 

^State vs. City Council of Charlestown, 12 Rich., 702. 

3 Washington vs. The State, 13 Ark., 752; McGehee vs. Mathis, 21 Ark., 40. 

* " Nothing in this constitution shall be so construed as to prohibit the general 



44 SPECIAL ASSESSMENTS. [3^4 

tradictory terms when they required such ' assessments to be 
" ad valorem and uniform." As a consequence, when a case 
in point arose in 1877, the court declared an assessment for 
paving levied according to frontage unconstitutional and in 
confli'ct with that article of the constitution which requires 
taxation to be uniform and according to the true value in 
money/ The clause just cited was thereby construed to mean 
simply that taxes might be laid upon property in specially 
designated improvement districts, but within those districts 
must be equal and uniform according to the value of each 
tract assessed. In case value should be a just criterion of 
benefit, this proceeding might approximate a special assess- 
ment; in all other instances, the constitution has merely em- 
ployed a misnomer to represent nothing more than a system 
of ordinary local taxation. 

In Tennessee the course of judicial interpretation has been 
very like that in Arkansas. As early as 1845, an ordinance 
imposing upon each owner of a lot the expense of constructing 
a foot-pavement in front thereof was upheld as valid legisla- 
tion.^ In a more recent decision,^ however, the court has dis- 
approved of all distinction between taxation and local assess- 
ment, and has held the latter to be distinctly forbidden by that 
article of the constitution which inhibits the taxation of prop- 
erty except according to its value. The charter granted 
Memphis in 1866, then, giving that municipality authority to 

assembly from authorizing assessments upon real property for local improvements 
in towns and cities, under such regulations as may be prescribed by law ; to be 
based upon the consent of the majority in value of the property-holders owning 
property adjoining the locality to be affected ; but such assessments shall be ad 
valorem and uniform." Constitution of Arkatisas, 1874, art. XIX., sec. 27. 

1 Peay vs. City of Little Rock, 32 Ark., 31. 

2 The Mayor and Aldermen vs. Maberry. 6 Humph., 368, followed in Wash- 
ington z/j. The Mayor, etc.,oi Nashville, I Swan, 177; and Whyte vs. The Mayor 
etc., of Nashville, 2 Swan, 364. 

•^ Taylor, McBean & Co. vs. Chandler, 9 Heisk., 349. 



395] SPECIAL ASSESSMENTS. 45 

levy assessments for street improvements according to front- 
age, was held to be so far unconstitutional and void. 

§ 9. The Noi'th Central CommonweaWis. Special assessments 
for benefits resulting from street improvements were intro- 
duced into Michigan with the Detroit city charter of 1827. 
The constitutionality of that portion of the charter was affirmed 
in 1853;^ but in i860, the method employed, namely, to re- 
quire each lot-owner to pay the cost of the improvement in 
front of his lot, was held to be obnoxious to that principle of 
taxation which demands a regular apportionment of the 
charges imposed." After this ruling of the court, Detroit went 
back to the plan of apportionment by front feet without secur- 
ing an amendment to its charter; this proceeding was legalized 
by legislative action only toward the end of the sixties.^ 

The city charter of Cleveland, Ohio, which went into effect 
in 1836, provided for "a discriminating assessment" according 
to the benefit accruing from local improvements. When 
questioned in the courts, this authority was sustained as 
eminently valid.* Two years later a similar enactment was 
again affirmed with special reference to the recent constitution 
of 1851.^ As the chief justice then said, "laws of the character 
of those now drawn in question, are no novelty in this state. 
Their origin is nearly coeval with our legislative history, and 
they have continued to multiply as occasion has required from 
that time to the pres'ent."^ A series of acts commencing 1846, 
extended their application to the construction of turnpikes and 
drains.^ 

^ Williams z/s. The Mayor, etc.^ of Detroit, 2 Mich,, 560. 

'^ Woodbridge vs. City of Detroit, 8 Mich., 274. 

3 Motz vs. City of Detroit, 18 Mich., 495. 

*Scovill vs. City of Cleveland, i Ohio St., 126. 

5 Hill vs. Higdon, 5 Ohio St., 243 ; affirmed in Ernst vs. Kunkle, 5 Ohio St., 
520. 

^5 Ohio St., p. 244. 

' Reeves vs. Treasurer of Wood County, 8 Ohio St., 333; Foster vs. Commis- 
sioners of Wood County, 9 Ohio St., 540. 



SPECIAL ASSESSMENl'S. 



[396 



In Illinois, the course of legislation for special assessment 
has not been uniform. The city of Chicago, from its first in- 
corporation in 1837, has continued to possess authority to 
charge the expenses of local improvements upon the property- 
owners benefited. Under the charter of 1837 and 185 1, this 
assessment was to be specifically by benefits, and action there- 
under was incidentally recognized by the courts.^ The charter 
revision of 1863 changed the rule of estimation from benefits 
to frontage. Assailed before the courts, this plan of assess- 
ment was declared to be unconstitutional; that is to say, it 
was intimated that the only legal method of levying assess- 
ments was by benefits.'^ Accordingly, this latter rule of estima- 
tion was re-instated by the charter of 1865 and once more judi- 
cially sustained.* To obviate all difficulty in the future, the con- 
stitution adopted by the commonwealth of Illinois in 1870, ex- 
pressly recognized the power of special assessment.* This 
clause has been held to have done away with any constitu- 
tional restrictions which might previously have existed, and to 
permit the assessment to be made according to frontage when- 
ever the legislature might deem that a proper criterion of 
benefit.^ 

In Indiana provisions for special assessments for street im- 
provements have been traced in the early special charters of 

^ Canal Trustees vs. The City of Chicago. 12 111., 403; Chicago vs. Baer, 41 
111., 306. 

2 City of Chicago vs. Larned, 34 III., 203; extended to sidewalks in Ottawa vs. 
Spencer, 40 111., 211. 

^ Wright vs. City of Chicago, 46 III., 44. 

* " The general assembly may vest the corporate authorities of cities, towns and 
villages with power to make local improvements by special assessment or by spe- 
cial taxation of contiguous property or otherwise." Constitution of Illinois, 
1870, art. IX., sec. 9. 

5 White vs. The People ex rel., City of Bloomington, 94 111., 604; Falch vs. 
The People ex rel., Johnson, 99 111., 137. 



397] SPECIAL ASSESSMENTS. 47 

various towns : those of Lawrenceburf^ and Vevay of 1846 ; 
that of Peru of 1848/ An act of 1857 gave the city of 
Indianapoh's the power to impose such charges upon the 
abutting property-owners^ while already in 1S52 similar 
assessments had been authorized by the legislature for bene- 
fits resulting from the construction of levees and dcains.^ 

The act incorporating the city of Milwaukee, Wisconsin, in 
1846, gave the local authorities power to impose a special 
charge upon lots in the city to defray the expense of opening, 
grading, improving and paving the streets and building side- 
walks and crosswalks in front of such lots. The system was 
very early extended to include the benefit resulting from the 
construction of piers along the lake-water, and its validity has 
been repeatedly judicially affirmed.* 

Special assessments were authorized in Missouri as early as 
1853. From the very first, they have there maintained the 
support of the judicial tribunals.^ 

In Minnesota special assessment for benefit was at one 
time forbidden by the constitution. An act passed in 1861 
authorizing the cost of a local improvement to be apportioned 
by commissioners " upon the real estate by them deemed 
benefited in proportion to the benefits resulting thereto," was 
held to be beyond the constitutional power of the legislature 
and consequently void.^ This was in 1863. But the ne- 
cessity of some such system of raising revenue in the rapidly 
growing cities of the West was soon felt to such a degree that, 

^ Palmer vs. Stutnph, 29 Ind,, 329. 

■■^ City of Indianapolis vs. Mansur, 15 Ind., 1 12. 

3 Anderson vs. The Kerns Draining Co., 14 Ind., 199. 

* Lumsden vs. Cross, 10 Wis., 282; Weeks vs. City of Milwaukee, 10 Wis., 242 ; 
Soens vi. City of Racine, 10 Wis., 271 ; Bond vs. City of Kenosha, 17 Wis., 284. 
^ Garrett vs. City of St. Louis, 25 Mo., 505. 
^ Stinson vs. Smith, 8 Minn., 366. 



48 SPECIAL ASSESSMENTS. [398 

finally, in 1869, an amendment was secured to the constitution 
enabling the legislature to delegate such power to the muni- 
cipal corporations/ Under the amended constitution, the 
system has found judicial support.^ 

In Iowa the doctrine of special assessments appears already 
in 1855 and 1856, when charters of incorporation were con- 
ferred upon the towns of Lyons and Mount Pleasant.^ Here 
their constitutionality has been upheld, not on the ground of 
the specific benefits derived, but upon the broad basis of the 
taxing power, and as approximating both the equality and the 
uniformity demanded by the principles of taxation. 

§ 10. The North Western Commonwealths. Among the 
northwestern commonwealths, Kansas, as the oldest and first 
settled, leads in the introduction of special assessments. The 
city of Leavenworth acquired authority for that purpose with 
its charter of 1864.* When questioned in the light of the 
constitutional restrictions upon taxation existing in that com- 
monwealth, the legality of that portion of the charter was 
promptly vindicated, the basis of the argument of the chief 
justice being "that under the general grant of power the legis- 
lature may authorize charges upon adjacent property for im- 
provements of streets and alleys, and is not bound by the first 
section of the eleventh article of the constitution to require 
that such charges shall be equal and uniform throughout the 
whole city."^ 

1 " All taxes to be raised in this state shall be as nearly equal as may be, and 
all property on which taxes are to be levied, shall have a cash valuation, and be 
equalized and uniform throughout the state. Provided, that the legislature may, 
by general law or special act, authorize municipal corporations to levy assessments 
for local improvements, upon the property fronting upon such improvements, or 
upon the property to be benefited by such imjtrovements, or both, without regard 
to a cash valuation, and in such manner as the legislature may prescribe." Con- 
stitution of Minnesota, art. IX., sec. I, as amended November 2nd, 1869. 

2 State vs. District Court of Ramsey County, 33 Minn., 295. 

3 The B. & M. R. R. Co., vs. Spearman and City of Mount Pleasant, 12 Iowa, 
112; Warren z/j. Henly, 31 Iowa, 31. 

* Hines vs. Leavenworth, 3 Kan., 186. ^ Idid.,^^. 202. 



399] SPECIAL ASSESSMENTS. 49 

In Nebraska special assessments have been authorized since 
1873. In that year an act passed by the legislature gave the 
city council of Omaha power to assess one-half the expense of 
grading a street upon the abutting lot-owners. This act was 
declared to be constitutional under the then existing constitu- 
tion.^ When, in 1875, the organic law was revised, largely 
upon the model of that but recently adopted in Illinois, it, too, 
was made to include a clause giving distinct approval of the 
system of special assessment.^ This clause has been held to be 
exclusive, in so far as to require assessments for local improve- 
ments in cities, towns and villages to be made, if made at all, 
** in proportion to the benefits received."""^ 

But Colorado is another commonwealth in which the prin- 
ciple of taxation by special assessment for benefit has been 
judicially repudiated. In thus repudiating the principle, the 
court based their action upon peculiarities of the constitution 
there in force.* According to their construction of that instru- 
ment, there is but one mode of taxation provided by the con- 
stitution of Colorado, and that is by a uniform levy upon all 
property according to a just valuation. The right to impose 
special assessments under the taxing power could not, there- 
fore, be sustained. But while expressing these views upon the 
general question, the court showed no hesitation in falling 
back upon the old cover of police power in order to uphold 
such an assessment for the construction of a sidewalk. In this 
loop-hole they have left a convenient path for retreat — a path 
which the local authorities in Colorado have not been averse 
to utilize.^ 

^ Hurford z^. Omaha, 4 Neb., 336. 

2" The legislature may vest the corporate authorities of cities, towns and vil- 
lages with power to make local improvements by special assessments or by special 
taxation of property benefited." ConstUution of A^ebraska, 1873, art. IX., sec. 6. 

3 State vs. Dodge County, 8 Neb., 124. 

* Palmer vs. "Way, 6 Col , 106. 

5 Special assessments according to benefits from sewers permissible : Keese w,. 



^O SPECIAL ASSESSMENTS. [40O 

The remaining northwestern commonwealths have but lately 
been promoted from the status of territories. The Dakotas, 
before their separation, enacted in 1887 a general law authoriz- 
ing the city council of any city to make assessments for local 
improvements upon property adjoining or benefited thereby/ 
This act was subsequently adopted by both North Dakota and 
South Dakota respectively. The same year marks the date 
of the operation of general acts with similar provisions passed 
by the legislature of Idaho/ of Montana/ and of Wyoming.* 

§11. The Coast Commonwealths and Territories. From the 
commencement of her career as an American commonwealth, 
California has adhered to the doctrine of special assessment 
for benefit. The first charter of San Francisco,^ as well as the 
revisions of 1 851 and 1855, provided for street improvements at 
the expense of the property-owners benefited and for imposing 
the charges in proportion to such benefits. In 1856 the rule 
of estimation according to frontage was introduced; in 18^9 
that according to valuation. Two years later recourse was 
had once more to assessment by the front foot, which method 
is still retained.® These laws have been upheld by a series of 
judicial decisions, the first one of importance having appeared 
in 1859 in relation to an act of 1853 which gave the city of 
Sacramento power to impose special assessments.^ The system 
was confessedly borrowed from New York.^ The constitution 
of California went so far as to put constitutional restrictions 

City of Denver, 10 Colo., 112; and City of Pueblo vs. Robinson, 12 Colo., 593; 
but not for curbing and guttering apart from sidewalks : Wilson vs. Chilcott, 12 
Colo., 600. 

^ Compiled Laws of Dakota, 1887, sees. 959 to 999. 

2 Idako Revised Statutes, 1887, title XIII., ^sec. 2230, 1 23. 

^Montana Compiled Statutes, 18S8, division V., chap. 22, sec. 430. 

* Wyoming Revised Statutes, 1887, title IV., chap, i, sec. 161 : for Cheyenne 
only 5 1^50. 

^ Emery vs. San Francisco Gas Co., 28 Cal., 345. 

^Burnett w. City of Sacramento, ll Cal., 76; Blanding vs. Burr, 13 Cal., 343. 

8 Taylor vs. Palmer, 31 Cal., 240, p. 254. 



40 1 ] SPECIAL ASSESSMENTS. 5 I 

upon the procedure which might be prescribed by the legisla- 
ture in cases of special assessment. The clause in question^ 
proved to be a greater hindrance to improvement than a pro- 
tection to the taxpayers, and, as the result thereof, it was re- 
pealed in November, 1884. 

In Oregon the system of special assessment has long had 
judicial as well as legislative sanction. In the charter of the 
city of Portland,"^ the legislature inserted a provision giving the 
municipal authorities power to apportion the expenses incurred 
for improving a street upon the owners of adjacent lots, and 
this act was in 1865 declared by the courts to be a rightful 
exercise of legislative authority and in complete conformity 
with the constitution.' 

The original method of defraying the cost of street improve- 
ments in the incorporated villages and towns of Nevada was 
by a special tax levy upon the regular valuation of the 
property within a specially created improvement district. In 
1 88 1 all restrictions as to the manner of apportionment were 
abolished, so that the assessment may now be made according 
to the benefits conferred.* 

Washington, while yet a territory, was restricted by her 
organic act from levying impositions, otherwise than accord- 
ing to value.^ The constitution of 1889, however, expressly 

^ " No public work or improvement of any description whatsoever shall be done 
or made in any city, in, upon, or about the streets thereof, or otherwise, the cost 
and expense of which is made chargeable or may be assessed upon private pro- 
perty by special assessment, unless an estimate of such cost and expense shall be 
made, and an assessment in proportion to benefits on the property to be affected or 
benefited shall be levied and collected and paid into the city treasury before such 
work or improvement shall be commenced, or any contract for letting or doing the 
same, authorized or performed." Constitution of California, iSjg, art. XL, 
sec, 19. 

2 Incorporated 185 1. ^Y^mg vs. City of Portland, 2 Ore., 146. 

* Nevada General Statutes, 188^, sec. 2052 ; sec. 2024. 

5 City of Seattle vs. Yesler, i Wash. Terr., 571. 



52 SPECIAL ASSESSMENTS. [402 

authorizes the legislature to vest the corporate authorities of 
cities, towns and villages with power to make local improve- 
ments by special assessment of the property benefited/ This 
authority has already been employed in a general municipal 
corporations act."^ 

Utah, too, has made application of the system of raising 
revenue under consideration. As early as 1865, Salt Lake 
City received power to levy special assessments for street im- 
provements to be assessed by commissioners upon the property 
in prescribed districts " in proportion to the benefit resulting 
thereto."^ Similar provisions are contained in the general act 
governing municipal corporations passed 1888.* 

§12. Siumnary, In summing up we find that out of the 
forty-four commonwealths which now comprise the Union 
forty, besides two territ^ories, have given legislative or judicial 
approval to the doctrine of special assessments. Two^ of the 
four dissenting commonwealths allow such impositions for 
such purposes as may be included within the pohce power of 
the state, while one other® has made at least an apparent attempt 
to authorize such action by constitutional provision. Six com- 
monwealth constitutions have given express recognition to the 
system,^ only four of which are at present in effective opera- 
tion. The small number of exceptions to the general rule thus 
adduced warrants us in maintaining that special assessment 
for benefit is a distinctive feature of American public finance. 

1 <« The legislature may vest the corporate authorities of cities, towns and villages 
with power to make local improvements by special assessments or by special tax- 
ation of property benefited." Constitution of Washington, i88g, art. VII., sec, 9. 

2 Hill's Statutes of Washington, i8g2, title IX., chap. 3, sec. 520. 

3 Utah Compiled Statutes, 1888, chap. 10, sec. 390. 
* Ibid., chap. 1 1. 

» South Carolina and Colorado. 

6 Arkansas. 

■^ Arkansas, California, Illinois, Minnesota, Nebraska, V\^ashington. 



CHAPTER III. 

SPECIAL ASSESSMENTS IN PRACTICAL OPERATION. 

§ I. Analysis of Systems of Assessment. The various sys- 
tems under which special assessments are actually levied in 
our American municipalities bear a general resemblance to 
each other, although they differ widely in many important 
points. If we seek to analyze them, we shall find that the 
numerous provisions naturally fall under ten distinct headings. 
First, we inquire into the purpose of the assessment. Secondly, 
we ask what conditions must be fulfilled in order to give the 
assessing body legal jurisdiction. Thirdly, what kinds of 
notice and hearing are required, and at what stage of the pro- 
ceedings. Fourthly, the subjects assessed, or rather the prop- 
erty included within the assessment district. Fifthly, the rule 
of estimating the benefits to the property thus included. 
Sixthly, the limitations upon the amount of the levy. Sev- 
enthly, how and by what action the sums assessed are made 
final charges against the parties benefited. Eighthly, the legal 
nature of these charges. Ninthly, the methods of collection. 
Tenthly, what, if any, statutory changes have been ingrafted 
upon the taxpayers' ordinary remedies for illegal assessments. 

It will aid us materially in our study if we obtain a clear 
view of some particular system in practical operation before we 
concern ourselves with the local variations and abuses or de- 
fects. This once accomplished, these variations may be the 
more easily understood. The typical system — if we can call 
any one system typical — is that of New York City. Some 
of its provisions trace their origin back to the charter of 1813, 
and since then have been constantly and repeatedly amended, 
403] 53 



^4 ' SPECIAL ASSESSMENTS. [404 

adapted and reformed. The New York system, moreover, has 
long been successfully applied in raising revenue for many vast 
municipal improvements, and has been moulded especially 
with reference to its practical working. 

§ 2. Special Assessments in New York City. There are two 
distinct and separate administrative systems in force in the city 
of New York, by which special assessment proceedings may be 
conducted. These two systems are exclusive, not concurrent. 
Whether an assessment should be levied by the one method 
or by the other depends entirely upon the purposes for which 
it has been authorized. The line of cleavage seems to be the 
exercise of eminent domain. That is to say, the opening, 
widening, straightening and closing of streets, involving the 
taking of private property, must be undertaken in connection 
with certain legal formalities before the courts, and conse- 
quently come within the sphere of the law department and 
the board of street openings. In the remaining cases 
for which special assessments are authorized by law — for 
building wells and cisterns, erecting pumps, pitching, paving, 
regulating and repairing streets, relaying pavements, construct- 
ing sewers, raising, reducing, leveling or fencing vacant lots 
and public slips — in these cases, the assessment for benefits is 
under the control of the board of assessors and the board of 
revision and correction. In one respect the line appears to 
have been illogically drawn; for where, in changing the grade 
of a street, the abutters' property rights are injured and an award 
for damages rendered necessary, the proceeding, although anal- 
ogous to that for laying out new streets, comes nevertheless 
within the province of the board of assessors, instead of that 
of the law department. The various steps required for levying 
these two classes of assessments have very little in common. 
We shall do well to consider each method separately. 

§ 3. Assessments for Street Improvements. First, then, the 
regular assessments for street improvements and the like. The 
improvement itself is carried out by the proper municipal de- 



405] SPECIAL ASSESSMENTS. 5- 

partment, either upon its own initiative or that of .the common 
council, as the statutes may provide. Only after the work has 
been entirely completed does the chief of the department under 
which it has been done certify the cost of the same to the 
board of assessors. The board of assessors consists of four 
disinterested persons, whom the commissioners of taxes and 
assessments are authorized to appoint from time to time. It 
is their duty, upon receipt of the certificate of cost of any im- 
provement, to send such certificate to the city comptroller for 
an indorsement of the interest chargeable upon such advances 
as the city may have made during the progress of the work. 
"When this certificate has been returned to them with the in- 
terest added, they proceed to assess the amount shown upon 
its face to have been expended, or so much thereof as has been 
duly ordered, upon those property-owners to whom the special 
benefits of the improvement are to accrue.^ The board of as- 
sessors determine both the area of the assessment district and 
the extent of the benefits within the area, unless a permanent 
area has been previously fixed.^ For their guidance in deter- 
mining the area, the law lays down the rule that it should in- 
clude all lands and premises deemed to be benefited. Prop- 
erty owned by the city forms no exception. Within the as- 
sessment district the charge is apportioned according to the 
individual benefit, subject to two limitations, namel}', first, that 
the charge does not exceed the benefit, and second, that it be 
no greater than one-half the assessed valuation of the property 
affected. This is the procedure which the letter of the law 
seems to prescribe. The board of assessors, however, read 
the statute more liberally. What they in fact do, is this. 
Where the district as determined includes only such property 
as abuts upon the improvement in question, they divide the 

^If a street has been once paved at the expense of abutting owners, an assess 
ment for repaying can be made only upon petition by the owners of a majority of 
the front feet on the line of improvement. 

2 E. g., sewer districts. 



56 SPECIAL ASSESSMENTS. [406 

cost among those chargeable in the ratio of the frontage of 
the property assessed. Should the district include lands not 
within this rule, the various parcels are laid off into strips or 
zones in accordance with their comparative proximity to the 
work. The board proceed upon the theory that the degree of 
benefit varies inversely with the distance from the line of the 
improvement. The abutting property is then assessed at so 
much per front foot or per square foot, the next nearest zone 
at a less rate, and the other zones proportionably. Where, 
however, the change of grade of a street involves damages for 
which awards must be made, the board of assessors make the 
assessment separately upon each property- owner, after first giv- 
ing notice and hearing whatever evidence may be offered. 

Upon the completion of the assessment roll, the board are 
required to give notice by publication for ten days successively, 
requesting all parties interested to present written objections 
within a period of thirty days. They may at the expiration of 
that time alter or modify the assessment list as they may see 
fit. If objections still remain, they are to be reported with the 
assessment to the board of revision and correction. This 
board, made up of the comptroller, recorder and corporation 
counsel, have power to consider the objections upon their 
merit, to subpoena and examine witnesses, and either to con- 
firm the assessment or to send it back to the board of assessors 
for revision. The lapse of thirty days after receiving the report 
without action is equivalent to confirmation, and confirmation 
makes the assessment a final charge upon the property, subject, 
of course, to review by the regular courts upon petition. 

§ 4. Assessments for Street Openings. Proceedings for the 
opening of new streets are instituted regularly by the 
board of street openings and improvements. After the par- 
ticular work has been duly determined upon, and after no- 
tice of the same has been duly given by publication, applica- 
tion is made to the supreme court for the appointment of 
three commissioners of estimate and assessment, whom the 



407] SPECIAL ASSESSMENTS. 57 

judges are to select in a manner prescribed by statute from 
two lists of names submitted by the property-owners and by 
the city respectively. The commissioners qualify for their 
duties and are allowed four months for the performance of 
their work, unless the time is extended upon application to 
the court which appointed them. The commissioners, after 
\'iewing the premises to be taken and listening to such of the 
interested parties as desire to be heard, make up their report 
upon the damages and benefits involved. They must neces- 
sarily themselves determine the district of benefit if it is to 
include lands not actually abutting upon the proposed street or 
public place. The damage inflicted and the benefits accruing 
are separately determined, and all the expenses of the proceed- 
ing are assessed upon the property-owners in the way of bene- 
fits, provided the body originally instituting the same have not 
ordered a specified portion of the cost to be defrayed by the 
corporation itself. The assessment for benefit, then, is really 
levied in the ratio of the excess of benefits over damages. AH 
these separate items must be shown in the report, together 
with diagrams of the proposed improvements and a tabulated 
abstract of the estimate and assessment. When completed, 
the abstiact is deposited by the commissioners along with any 
documentary evidence upon which it may be based, with the 
commissoner of public works, forty days before they intend to 
report to the court. The commissioners of estimate and as- 
sessment give notice by publication for thirty days, stating 
their intention to present their report for confirmacion at a spe- 
cified time and place, and that they will hear within the ten 
days just succeeding the thirty days after the first publication 
of the notice any objections thereto presented in writing. 
After making any just alteration or correction, the assessment 
is reported to the court. If, upon the coming in of such report, 
persons interested therein either by assessment for benefit or 
by award of damages still object to items aggregating more 
than one-half the total, then all further proceedings in the 



g SPECIAL ASSESSMENTS. [408 

matter must be discontinued, if such persons so desire. Other- 
wise after listening to any complaints that may be alleged 
against the report, the court either confirm it or remand it 
once more to the commissioners for correction, and so on 
until a report is secured that deserves confirmation. 

§ 5. Collection and Application of Assessments. From the 
date of their confirmation, the various assessments for benefit 
become both hens upon the property benefited and personal 
liabilities of the owners. Notice of such confirmation must be 
given by the comptroller by public advertisement for ten days. 
If unpaid sixty days after entry upon the records, the charges 
begin to bear interest at the rate of seven per cent, per annum. 
Assessments for certain designated improvements, however, 
are payable in yearly installments each of five per cent, of the 
total amount charged, with seven per cent, interest upon the 
sums still unpaid. Whenever any assessment remains unpaid 
for three years, the comptroller is required to direct the clerk 
of arrears to proceed to collect the same by public sale ac- 
cording to law. 

It is to be noted that, except in certain cases of street open- 
ings, the assessment is not to be made until after the expenses 
of the improvement, from which the benefits flow, have been 
incurred by the corporation. The time elapsing between the 
completion of the improvement and the confirmation of the 
assessment, is frequently of considerable duration. These im- 
mediate liabilities on the part of the city are met by payments 
of money realized from the sale of improvement bonds. Bonds 
of this kind may be issued by the comptroller at not less than 
par, and for a period not exceeding ten years, upon due author- 
ization. The moneys payable upon these assessments are 
turned over, as they come into the city treasury, to the com- 
missioners of the sinking fund, and by them applied toward 
the amortization of the municipal debt. 

§ 6. Remedies of the Taxpayer. The usual common law rem- 
edy open to a taxpayer aggrieved by an irregular or fraudulent 



409] SPECIAL ASSESSMENTS. 5^ 

assessment, is to secure a review of the proceedings upon a 
writ of certiorari returnable to the proper court. This method, 
as appHed to assessments laid by the board of assessors, has 
been entirely supplanted in New York City by the exclusive 
statutory remedy of a petition for the abatement or reduction 
of the assessment. Such petition will be entertained by the 
supreme court only where fraud or substantial error can be 
proved. The courts are absolutely prohibited from reducing 
any assessment to a greater extent than it may be shown to 
have been increased by such fraud or substantial error. In no 
instance are they allowed to disturb that portion of the assess- 
ment which is equivalent to the fair value of the local im- 
provement. 

Besides this direct method of contesting an illegal assess- 
ment, there are two less direct remedies which may be em- 
ployed by the taxpayer. First, he may pay under protest and 
then bring an action to recover the money thus paid. This is 
a rather dangerous pursuit; for whenever the payment has 
been voluntarily made with knowledge of all the facts and 
without the stress of coercion or threats amounting to the 
same, the courts will scarcely allow a recovery. Secondly, he 
may refuse payment and suffer the sale of his property for the 
delinquent assessment to proceed, and afterward dispute the 
title of the purchaser should the latter seek to enforce his 
claim to possession. The courts hesitate to give equitable 
relief so long as justice is attainable by the regular legal pro- 
ceedings. 

§ 7. Local Variations: Purposes; Acquiring ynrisdiction. 
While the New York system may be said to be in a certain 
way typical, not every American city is supplied with a similar 
duplicate procedure. It is true that the taking of land by ex- 
propriation must everywhere follow a prescribed judicial 
process, but there is no necessary connection between the as- 
sessment for damages and the assessment for benefits. So a 
number of municipalities — Baltimore, Boston, Cleveland, 



4 



^Q SPECIAL ASSESSMENTS. [4 1 

Washington^— have regularly but one set of assessment offi- 
cials. The new Massachusetts statute, providing for special as- 
sessments in Boston, is extremely careful to separate the two 
operations of assessing for damages and for benefits.^ Wher- 
ever the duplicate system does exist, the procedure for open- 
ing streets approximates as closely as possible the ordmary 
judicial process required in the exercise of eminent domam. 
But even where there is really only one method of levying 
special assessments, there may be several different ways of 
setting the machinery in motion. The power to initiate such 
proceedings may be concentrated in the common council or 
legislative body, as in Chicago, Cleveland, New Orleans, 
Omaha, Philadelphia, San Francisco, Washington ; or it may 
be delegated to the executive departments, as we have seen to 
be the case in New York, as also in Boston and Jersey City, 
usually the department of public works or board of street com- 
missioners. The prevailing tendency seems to be toward a 
simplification and centralization of this power. 

The purposes to which the American municipalities apply 
their systems of special r|^sessment are in general the construe- 
tion and improvement of streets. Nearly all of them are au- 
thorized to charge the expenses of opening new streets, of lay- 
ing pavements, of constructing sidewalks, of grading and 
changing grades, and of building sewers, upon the property- 
owners thereby benefited. What they are authorized to do. 
and what they actually do, are, however, not always identical. 
Baltimore, for example, has power to assess the cost of various 
street improvements upon the abutting property-owners, but in 
fact does so only in respect to opening streets and constructing 
foot-ways. Chicago, Philadelphia and St. Louis are empow- 
ered thus to levy the expense of laying water pipes, but St. 

1 But special acts have provided special assessment tribunals, e. g., act of 
congress, Sept. 27th, 1890. 

2 Act of 1891, chap. 323, as amended by act of 1892, chap. 418. 



4 1 I ] SPE CIAL A SSESSMENTS. 6 1 

Louis makes no use of this power. In Chicago the cost of 
erecting lamp posts is included in the same category. On the 
other hand, several cities — Cleveland, Minneapolis, Omaha, St. 
Louis — may impose special assessments for the purpose of street 
sprinkling. Cincinnati once levied such assessments for street 
lighting, and Cleveland is authorized so to do. Assessments 
for street lighting are now almost unknown ; they, as also the 
charges for street sprinkling, seem to fall upon the very border 
line between the field of assessments and that of fees and tolls. 
In many instances, numerous safeguards are thrown about 
the taxpayer, in order to protect him against hasty action on 
the part of the body authorized to impose assessments for 
benefit. Of this nature are the various restrictions upon the 
acquirement of jurisdiction to act. Of course, the real test of 
authority is the ultimate power to order an assessment, in 
spite of the opposition of those who are to be charged. In 
Boston, Chicago, New Orleans, Philadelphia, Washington, the 
wishes of the parties immediately interested need not neces- 
sarily be consulted. No petition is required for valid action. 
Other systems offer alternative proceedings; in Jersey City, 
and for certain purposes in Cleveland, there must be either a 
petition of the owners of a major portion of the property to be. 
affected, or the improvement must be ordered by an increased 
vote of the legislative body. In order to give jurisdiction in 
St. Louis, there must be either a recommendation from the 
board of public improvements, or a petition from the property- 
owners ; and if the recommendation be accompanied by a 
remonstrance of any of the interested taxpayers, then the 
passage of the ordinance requires a two-thirds vote of the 
assembly. A petition may be absolutely necessary for assess- 
ments for all or for particular purposes, as in Baltimore, Cleve- 
land, New Orleans, Omaha, or a remonstrance may utterly 
oust jurisdiction to act. For example, under the system em- 
ployed in San Francisco, if, after the passage of an ordinance 
proclaiming the intention of the council to order a local im- 



62 SPECIAL ASSESSMENTS. [412 

provement, the owners of a majority of feet frontage remon- 
strate in writing, jurisdiction for that improvement is ousted 
for six months, unless such majority petition therefor ; but no 
remonstrance will hold where the assessment does not affect 
property in more than two blocks. 

§ 8. Notice ; .Subjects Assessed; Rule of Estimatio7i. As re- 
gards the notice and the opportunity of a hearing for the tax- 
payers, the usual method is to give notice of an intention 
to order a local improvement before any arrangements what- 
ever are made for carrying out the work. This is done in 
Baltimore, Boston, Chicago, Jersey City, New Orleans, and 
San Francisco. Its purpose is simply to enable protests to be 
entered against the whole undertaking. Either with it is 
coupled a statement of a time and place where the commis- 
sioners of assessment will hear evidence as to benefit, or a 
second notice is given at a later period. In St. Louis this 
notice and hearing are given by the board of public improve- 
ments before they recommend the work to the council. In 
Cleveland, the objectionable items are referred for equalization 
to a special board of equalization, while in Omaha, the council 
themselves act in that capacity. By the Chicago system, the 
estimate is made by "three members of the council or other 
competent persons" — in reality, the engineering department — 
and on approval of their report by the council, the latter file a 
petition in the county court for proceedings to assess the cost 
on the property-owners benefited. The court thereupon ap- 
point three competent persons as commissioners to apportion 
the assessment. These commissioners must then give to the 
interested parties notice of the assessment and of the term of 
court at which a" final hearing thereon will be had, and if 
objection be filed, the disputed points are submitted to a jury. 
As has been before pointed out, wherever the exercise of 
eminent domain and the assessment for benefit are indissolubly 
connected, the proceedings follow the regular course of judicial 
determination. 



413] SPECIAL ASSESSMENTS. 63 

There are, on the other hand, a number of cities in which 
no notice need be given the property-owners until aft"er the 
amount of the assessment has been fixed. This is the case in 
Omaha when assessments are laid for plank sidewalks, and in 
New Orleans when the purpose is to defray the cost of drainage. 
In Washington the taxpayer may not hear of the assessment 
until he is in fact presented with a tax bill for the same. The 
same is true with regard to assessments for sewers and wateJ 
pipes in Philadelphia. The explanation of this situation in 
Philadelphia is found in the fact that, as the amount of the 
assessment is fixed by statute, no relief could be obtained by a 
hearing upon the proportionable benefits accruing. The party 
assessed, by resisting all attempts to collect the charge, may 
secure a judicial decision upon the legality or illegality of the 
assessment, but has no opportunity to attack the relative 
amount of benefits assessed. 

The rule most commonly applied in fixing the assessment 
district is that of including all contiguous property to which 
benefits are supposed to accrue from the improvement in ques- 
tion. In Washington, New Orleans and Boston the property 
assessed must abut upon the line of work whose cost is sought 
to be thus defrayed. All such property is usually assessed ; 
that is to say, the city pays its share upon whatever municipal 
property may be comprised wnthin the assessment area. An 
exception is found in Philadelphia ; here only such real prop- 
erty is assessable as is also subject to the general property 
tax. 

The end aimed at in assessing each parcel within the dis- 
trict, is to ascertain the approximate benefits resulting thereto. 
As an index to this benefit the foot-front rule is employed 
wherever applicable. The practice of laying the lands off into 
zones, and subjecting them to different rates, as we have seen 
to exist in New York City, is frequently met elsewhere. In 
some cities, as in Philadelphia, a certain deduction is made in 
favor of corner lots. Assessment according to superficial area. 



54 SPECIAL ASSESSMENTS. [414 

is practiced now and- then in levying upon sewer districts. 
For street openings and improvements of like nature, the 
universal rule is to estimate the particular benefit to each 
parcel. 

§ 9. Limitations on - Ainoii?it ; Confirmation and Legal 
Nature. The amount of the levy may be limited by statute in 
several ways. First, it may be absolutely fixed. This is the 
case in Philadelphia in respect to assessments for sewers and 
water pipes. The sum charged must be so much per front 
foot — no more, no less.^ Second, the maximum charge may 
be determined in advance. As examples, we have assess- 
ments for sewers in Boston and in Cleveland.^ Third, the ratio 
of the assessment to the value of the property may be fixed. 
Cleveland and St. Louis are authorized to impose the cost of 
local improvements upon the benefited proprietors, only to 
the extent of twenty-five per cent, of the fair valuation of the 
property. The restriction upon the authorities of San Fran- 
cisco is placed at fifty per cent, of the value. Fourth, the 
portion of the cost of the improvement chargeable upon the 
property-owners may be limited. In Washington, one-half 
the expense is defrayed by special assessment, and the other 
half by congressional appropriation. In Cleveland, too, at 
least one-half of the cost of repaving streets, and one-fiftieth of 
the cost of other public works, must be borne by the city at 
large. Fifth, the statute may require certain designated items 
of expenditure to be deducted from the sum otherwise assess- 
able upon private parties. The usual form of this restriction 
is found in provisions by which the defrayal of the cost of 
improving street intersections is withdrawn from the system 
of special assessment. This is the case with Cleveland, New 
Orleans and Omaha. Similar in scope is the clause in the 
charter of the last-mentioned city, which specially imposes 

1 Sewers, ^1.50 ; water pipes, ^l.oo. 

2 ^2.00 per foot in each city. 



41^] SPECIAL ASSESSMENTS. 65 

Upon street railway companies the cost of paving between 
their rails. The new Massachusetts statute relating to Bos- 
ton, prescribes a detailed procedure for ascertaining the proper 
amount to be assessed upon abutting owners for opening, 
widening and constructing streets. There the sum is obtained 
by taking such portion of the expense as fifty feet bears to the 
width of the entire street, if over fifty feet in width ; in widen- 
ing streets to a greater width than fifty feet, by deducting from 
the expense such part as the width in excess of fifty feet bears 
to the total widening. The remainders become a charge upon 
the whole community. Various combinations of these several 
restrictions upon the amount assessable, are found in different 
cities. 

The several items on the assessment roll become final 
charges when confirmed by the body which ordered the as- 
sessment or appointed the commissioners. This is in most 
instances the com.mon council, but in some a specified court or 
a designated ministerial board. In general the imposition is 
by statute made a lien upon the property assessed. The char- 
ters oC Baltimore, Chicago, Cleveland, Omaha and San Fran- 
cisco expressly constitute it also a personal liability of the 
owner. According to the law applicable to Cleveland the lien 
lapses two years after the assessment is payable, unless within 
that time proper action has been begun to collect the same. 

§ 10. Collection and Remedies. Greater variations exist in 
the methods of collecting special assessments than in the pro- 
visions already considered. In some municipalities, notably 
Baltimore, Jersey City and New Orleans, there are no special 
arrangements for the collection of this revenue other than those 
provided for covering the general taxes into the treasury. 
Other cities again have a minute procedure prescribed for this 
purpose. The charter defines the time when the assessments 
become delinquent, whether or not they are payable in install- 
ments, the rate of interest they are to bear, the penalties which 
attach to non-payment, to what funds they are to be accredited. 



ee SPECIAL ASSESSMENTS. [416 

when and in what manner proceedings are to be taken to col- 
lect unpaid assessments by sale of the property assessed. As 
an example we may cite the provisions of the system recently 
inaugurated in Boston. If the assessment is not paid within 
a year from the date of the passage of the order therefor by 
the board of street commissioners with interest, nine per cent, 
of such sum, including interest, is added to the next and each 
succeeding annual tax bill issued for the general tax upon that 
land. For any parcel for which no tax bill would otherwise 
be issued, the board are to issue a special tax bill. Each such 
sum is abated, collected and paid into the city treasury in the 
same manner as city taxes. The owner may at any time 
elect to pay the balance still due from him, or any part thereof, 
whereupon the board of street commissioners, with the ap- 
proval of the mayor, may relieve his property from a corres- 
ponding portion of the lien. The amount collected is applied 
to the sinking fund for extinguishing those bonds upon which 
money has been raised to defray the expenses of the particular 
improvement. 

The collection of the assessment charges is not .always 
vested in the city officials. In Philadelphia, San Francisco 
and St. Louis, the assessment bills are turned over to the con- 
tractor in payment for his work, and he is deprived of all 
recourse upon the city in case of failure to collect. In such 
cities, the certified bills or warrants become delinquent at the 
expiration of a very short period, after which ,they bear interest 
at high rates, and become immediately collectible by sale 
proceedings. In Philadelphia, moreover, the tenant in posses- 
sion may pay one of these tax bills, and hand the receipt to his 
landlord as so much money in liquidation of his rent. In all 
other respects the contractor is given all the remedies of the 
city, and may institute legal process for collection in its name. 

It is the usual practice to leave the taxpayer who thinks 
himself aggrieved by any assessment entirely to his ordinary 
remedies under the common law or code. His rights in this 



,. 1^7] SPECIAL ASSESSMENTS. 6/ 

relation are, however, limited in several cities. Thus, in Jersey 
City a writ of certiorari upon a sewer assessment can not be 
taken out after the expiration of thirty days from the date of 
confirmation. In Chicago and Omaha the courts are forbidden 
to entertain complaints of technical irregularities as grounds for 
invalidating an assessment or a sale based thereon. And in 
the charter of St. Louis there exists this peculiar provision, 
that where a contractor begins legal proceedings for the col- 
lection of an assessment warrant, proof on the part of the 
defendant that the work was not performed according to the 
contract, and that the real proportionable value of the work 
had been offered the plaintiff, shall entitle the defendant to a 
judgment against him only for the amount so tendered, with 
costs imposed upon the contractor. In no large city outside 
of the commonwealth of New York has any one statutory 
remed}^ been made the exclusive remedy of the taxpayer. 

§ II. The Rebate Nuisance. We have learned from our 
historical study, that the commissioners originally appointed 
in New York were "commissioners of estimate and assess- 
ment." In other words, it was their duty to estimate not only 
the benefits resulting from the work in hand, but also the 
probable expense about to be incurred. The reason for this 
was that, in order to relieve the municipality of all special 
liability, the sums assessed upon the property-owners were 
collected in advance of the improvement, and applied to the 
expenditure as the work progressed. If the cost exceeded 
the 'estimate, the deficiency was supplied by a re-assessment; 
if it fell short of the assessment proceeds, the surplus was to 
be returned ratably to the contributors. As a matter of fact, 
the system employed departed from the theory long before it 
was recognized in the law. We have an instance appearing 
-o early as 1836, where the actual making of the assessment 
was postponed until after the completion of the work.^ For 

' Doughty vs. Hope, 3 Denio, 249. 



68 SPECIAL ASSESSMENTS. [418 

many decades now, it has been the invariable practice to make 
no assessment upon the parties benefited, until the exact ex- 
pense of the improvement has been officially ascertained. 
This phase of development, through which New York passed 
at an early period, has not yet been reached in several other 
municipalities. In Minneapolis, in Chicago, in Cleveland, and 
most probably in numerous smaller cities, the assessment list 
is to-day made and confirmed before even a contract is en- 
tered into for the performance of the contemplated work. In 
the present experiences of these cities upon this point, we un- 
doubtedly have re-appearances of abuses and defects similar 
to those v/hich occasioned the change in New York. 

§ 12. Rebates in Minneapolis. The situation in Minneapolis 
has recently occasioned serious alarm. The levies for local 
improvements are made in the light of an approximate esti- 
mate of the probable cost, and this estimate is always suffi- 
ciently liberal to cover all contingencies. The contractor's 
figures are as a rule considerably lower than those of the city 
engineer, and the taxpayer is thus compelled to pay a sum in 
excess of what is legally due. The excess in certain individual 
cases has been known to reach up into the thousands of dollars. 
It is said that there have been at various times upwards of 
;^200,000 of such money in the public treasury, in reality be- 
longing to particular property-owners. During the year 189 1, 
;^ 1 79,440.60 were collected as special assessments only to be 
subsequently refunded. Much of the money never reaches its 
owners, inasmuch as the taxpayers are scarcely less negligent 
in collecting rebates than in paying the original assessments. 
The remedy suggested by the authorities in charge of the sys- 
tem in Minneapolis is to delay the assessment until after the 
improvements have been effected.^ 

§ 13. Rebates in Chicago. The state of affairs in Chicago was 

^ The recommendations of the assistant city engineer are puljlished in the Minne- 
apolis Evening Tribune, January 23rd, 1^93. 



419] SPECIAL ASSESSMEXTS. 6q 

still worse until within the past few months. Here the so-called 
" guess-work" plan was in active operation, resulting in con- 
stant confusion in assessment administration, and in irreparable 
loss to the contributors. In no city in the country had the 
system of special assessment for benefit attained such a magni- 
tude as in Chicago, and the extent to which excess payments 
were collected was upon a scale commensurate with the entire 
revenue. For many years the amount of rebates annually 
returned to their owners constituted over twenty per cent, of 
the total assessment proceeds. As indicated by the comp- 
troller's books, the figures for three years were: 

Assessment Rebates in Chicago. 



1889 
1890 
1891 



Total 
Assessments. 



Abatements. 



$4,220,869.93 5569,569.21 
6.987»i55-48; 592,350 73 
8,79o,443-29i 436,918-55 



Assessments 
Refunded. 



Assessment; 
Annulled. 



$482,181.77 i $7,569.84 

795,423.07 I 8,959.50 

1,031,919.47 2j<,o73 37 



Total Rebates. 



$1,059,320.82 

1.39^733-30 
1,496,911.39 



These sums are the actual amounts paid back to the prop- 
erty-owners. The sole cause of the rebate system lay in the 
inaccurate estimates made by the engineering department. 
The latter, in their anxiety not to be caught in an under- esti- 
mation, were very careful to make the margin of excess wide 
enough to cover any errors which might have been committed. 

The loss devolving upon the taxpayers was fourfold in its 
nature. Firstly, the contractors found no difficulty in learning 
how great an amount was authorized to be assessed upon the 
district benefited by a particular improvement, before they 
handed in their bids upon the work. In fixing their prices, 
they would then be influenced by the greatest possible sum 
attainable, and would thereby secure a greater remuneration 
than they would otherwise have been able to obtain,^ Sec- 



This was emphatically denied by the contractors. 



jQ SPECIAL ASSESSMENTS [4^0 

ondly, the property-owners were deprived of the use of the 
money paid in excess of the expenditures. They were re- 
quired to pay six per cent, interest upon every deferred install- 
ment, but received no return from their money while lying idle 
in the city treasury. Calculated upon the same basis, the loss 
of interest during the year 1891 would amount to a sum in 
the neighborhood of ;^ 1 00,000. Thirdly, the annoyance and 
waste of time necessary in order to secure the rebate justly 
due, often counter-balanced any money value which might 
have been obtained. "To collect a rebate involves so much 
labor and bother, so much explanation to this clerk and that 
official, so many journeyings from bureau to bureau and 
from department to department, that it wearies soul and body. 
And when a man is called on to do all this, and then told that 
his rebate is but eight cents, as sometimes happens, he loses 
patience."^ The fourth consequence was, theh, that there 
remained in the city treasury to the credit of the rebate fund 
several hundred thousand dollars, for the greater portion of 
which no claimants had presented themselves. In 1890, the 
city council passed an order transferring ;^i 50,000 of this 
money to the general fund in order that the city might use it. 
Adding the sum still remaining in the hands of the city treas- 
urer, the total of unclaimed rebates swelled to ^385,000. This 
money belonged to people who failed to get notice of its 
award, to business men who would not waste their time in 
collecting it, to speculators whose property had passed through 
many hands since the assessments were paid. Add to all this 
the increased expenditures needed to perform the clerical worl^, 
and we have a picture of the useless costliness of the pernicious 
rebate nuisance. 

That the rebate system is no necessary concomitant of the 
system of special assessment for benefit, is a fact that has al- 
ready been appreciated at Chicago. An application of the 



'Chicago Evening Post, July 14th, 1892. 



i 



42iJ 



SPECIAL ASSESSMENTS. 



simple remedy waited only upon the proper agitation. The 
agitation and investigation appeared during the summer of 
1892. . The reform quickly followed. It was effected in this 
way. The council passed an ordinance changing the time of 
making the assessment. Instead of being made as formerly 
upon guess-work estimates, the commissioner of public works 
now advertises immediately for proposals upon the contem- 
plated improvement. After such proposals are received and 
bonds filed, the lowest bid of the responsible contractors is 
sent to the special assessment department, where the work of 
completing the assessment lists proceeds with this figure as a 
basis. Then, when the designated proportion of the assess- 
ment is covered into the treasury, the commissioner of public 
works closes the contract. This method of procedure has 
enabled the authorities to ascertain almost to a cent just what 
the proposed improvement will cost. The changes have in the 
main proved satisfactory while the rebate nuisance is rapidly 
disappearing. 

§ 14. Extravagance and Corruption. The most frequently 
met accusation against the whole doctrine of special assess- 
ment for benefit is that it fosters extravagance and abets cor- 
ruption. Whether or not it is true that municipalities are 
more easily led to make uncalled for and premature improve- 
ments under one system of raising revenue than under another, 
is a point about which much might be said upon either side. 
It can not be denied, however, that we have several notable 
occurrences of such unwise action under the regime of special 
assessments, which have been followed by most deplorable 
consequences. Nor would a work upon this subject have a 
claim to completeness, did it not at least mention the import- 
ant instances where taxation by special assessment for benefit • 
has proved no bar to lavish expenditure or political corrup- 
tion. 

§ 15. The New Jersey Insolvent Cities. The quasi-insolvent 
condition of a number of New Jersey cities has long been 



-72 SPECIAL ASSESSMENTS. [422 

familiar to students of municipal activity. That their rapid 
decline^ under an overwhelming burden of debt was precipi- 
tated by a change in the judicial interpretation of the then 
existing special assessment laws, is a fact less widely known.^ 
The method of providing for the expenses of local improve- 
ments by assessing the whole or a designated portion thereof 
upon the abutting property, had been the regular practice in 
New Jersey for many years. Under this accepted doctrine 
many cities, particularly Elizabeth, were induced to under- 
take extravagant and wholly unnecessary public works at the 
expense of the parties specially interested. The authorities 
issued assessment bonds in order to secure the funds needed 
for paying the contractors, and looked to the assessments as 
they should be collected to liquidate the bonded bebt. Eliza- 
beth, for example, had miles upon miles of streets opened and 
laid with wooden pavements, through the supposed suburban 
districts, which as yet comprised nothing more than unbroken 
meadows or worthless woodland. For these purposes, mil- 
lions of dollars were borrowed by sale of bonds in anticipa- 
tion of the revenue from the assessments. The expectation 
that these improvements would forthwith transform un- 
occupied tracts of land into desirable residence property was 
sadly disappointed. In the meantime the property diminished 
in value; the interest charges and arrears upon deferred install- 
ments, mounting gradually higher and higher, soon frequently 
exceeded many times the value of the property assessed, 
and made it to the interest of the proprietors to release all 
title of ownership rather than to pay the charges due. Along 
with all this, came the change in the New Jersey legal doctrine 
as to the relation of the amount of the assessment to the 
actual possible benefits. This change, when applied in 1876 
to the charter of Elizabeth, resulted in a decision render- 
ing void all the assessments which had been levied in that 

' An interesting account is given in the notes to 2 Dillon, Municipal Corpora- 
tions, 928, et seq. 



423] SPECIAL ASSESSMENTS, 73 

city.^ This left the outstanding assessment bonds a general 
burden upon the cities which had issued them — a burden 
which soon reduced several municipalities to practical insol- 
vency. The only path open was to resort to general taxation, 
in order to defray the charges for interest and the sinking 
fund. By 1879, it would have required annual taxation at 
the rate of six per cent, to meet the obligations of the city of 
Elizabeth. As a result, a series of relief acts passed the legis- 
lature, aiming by means of compromise to effect a settlement 
between the insolvent cities and their creditors, and in- 
cidentally to exert a pressure upon such of the latter as re- 
fused to compromise. An arrangement was perfected whereby 
a new series of municipal bonds was authorized as indemni- 
fication of the assenting creditors, while the dissenting 
creditors remained without effectual remedy upon their claims. 
Elizabeth has now satisfactorily adjusted most of the debt in 
question. Jersey City, in 1 891, still counted over ;^5, 000,000 
as her liabilities upon assessment bonds issued for work dur- 
ing this period. In Newark the adjustment commission- 
ers have just completed their task. 

§ 16. Assessment Arrearages in Brooklyn. The course of 
affairs in Brooklyn during the decade just preceding the year 
1880, was scarcely more re-assuring. On December 1st, 1879, 
tax certificates to the amount of ^3,650,000 were outstanding, 
of which ;^ 1, 386,992 37 represented arrears of special assess- 
ments which should have been paid in yearly installments.^ In 
addition to this sum were ;^3, 164, 504.88 of assessments still to 
be paid but not yet due. The improvement bonds which had 
been issued to anticipate this revenue were bearing seven per 
cent, interest; they had never been considered as a city debt 
proper, the assessments levied upon the property l^enefited and 
the prior liens upon such property having been deemed ample 

1 Bogert vs. City of Elizabeth, 27 N, J. Eq., 568. 

'■^ There were at the same time arrearages of ^6,243,069.32 for general taxts. 



74 



SPECIAL ASSESSMENTS. 



[424 

security for the amortization of the bonds. A great portion of 
the burden of this debt was thus through arrears of payment 
being shifted over by the delinquents upon the city as a whole. 
The process by which this result was brought about may be 
gathered from the following table: 

Assessment Arrearages in Brooklyn. 





Improvement 
Bonds Issued. 


City's Assets Against the 
Bonds. 


Deficit. 




Year. 


Assessments 

in Process of 

Collection. 


Assessments 
not yet Paid. 


Surplus. 


1871 
1872 
1873 
1874 
1875 
1876 
1877 
1878 
1879 


#6,654,405,10 
6.552,055.10 
6,232,104.67 
6,463,000.00 
5,902.000.00 
6,956,000.00 
6,614,000.00 
6,262,00000 
6,230,000.00 


#2,367,938.20 
2,502,885.88 
2,661,775.61 
2,514,670.14 
3,981,15995 

3.630,947-39 
3,701,028.82 
3,113,774.42 
2,955.133-36 


#4,187,270,43 
3,f 08,167 83 
3,316,707.02 
3.979,084.95 
1,991,715.36 

1,447,770.31 
699,196.46 
681.757.99 
629,639.08 


#99,196.47 
141,001.39 
253,622.04 










^30,755-C9 
70,875.31 




1,877,812.30 
2,213,77472 
2.466,467.69 
2,645,227.56 








This deficit of ;^2, 645, 227.56 at the commencement of 1880, 
was to be still further increased b}^ various items : Williams- 
burgh improvement bonds, ;^38,ooo.co; Brooklyn local im- 
provement loan, ;^2i 3,000.00; assessments uncollected for 
twenty years and thus lapsing, ;^86,85i.83; an unknown 
amount of outstanding assessments upon city property; and a 
large amount of reductions and* vacations. The vacations 
ordered by different bodies — the supreme court, the city court, 
the common council, the board of assessors, the legislature — 
summed up a total of ,^2,353,598.47. Altogether, the burden 
which had in these ways been cast upon the city made an 
amount not less than five and a half millions of dollars. 

We can have no occasion to wonder, then, that this state of 
the city's finances was sufficiently alarming to call forth from 



^25] SPECIAL ASSESSMENTS. 75 

the comptroller a special report upon the problem of assess- 
ment arrearages.^ The question propounded at the outset is, 
What can have been the cause of this condition of the arrears 
of taxes and assessments ? In order to illustrate his view, the 
comptroller presented a map of the principal districts affected, 
upon which were shown both the assessed valuation of the 
property there situated and the amount of the public charges 
still due. These pieces of property had been considered by 
their owners as confiscated and as abandoned by them. .Among 
the extreme examples cited, we find lots valued at $2QO, ;$400 
and $500, subject to special assessments of ;$884.o8, ;$I072.88 
and $3871.25, respectively. The assessors had failed signally 
to do their duty, and had utterly disregarded the law which 
prohibited the levying of any special assessment beyond one- 
half the value of the property benefited. As many as eight 
separate and distinct levies had been made upon the same lots, 
when one assessment would have sufficed for practical confisca- 
tion. The conclusion of the comptroller was that the property 
in question "had not been confiscated by taxation, but by 
fraudulent and unnecessary local improvements forced upon 
the owners at a time. when labor and material brought the 
highest prices ; when the cost per cubic yard of filling was sixty- 
three cents; when contractors and many city officials became 
rich while property- owners and the city became poor.'" The 
only solution possible lay in re-adjustment and compromise. 

§ 17. TJie New York Assessment Commission. New York 
City was a contemporary sufferer with Brooklyn, and from 
similar causes, although upon a larger scale. As we have 
seen, an assessment commission was specially appointed by 
the legislature, to the task of untangling the meshes of cor- 
ruption. The commission began their labors in the autumn 

' Special Report of the Comptroller on Arrearages for Assessments for Gen. 
eral and Special Improvements, Brooklyn, 1880. 

"^Report, p. 18. 



^6 SPECIAL ASSESSMENTS. [426 

of 1880.^ Originally created for a period of about fifteen 
months, they were repeatedly re-appointed by successive laws 
of 1882, 1884 and 1885, and continued their sessions until 
December 31st, 1886. The membership, at first consisting of 
the five chief municipal officers, varied by reason of resigna- 
tions, deaths, and new appointments ; for a considerable time 
it had sifted down to a little junta of two persons who con- 
tinued to abate assessment charges with marvelous rapidity. 
The commission conducted their proceedings as a special 
tribunal, before which petitions for relief might be brought. 
They were authorized to act according to general equitable 
principles, and their jurisdiction under the statute extended 
over (i) all assessments confirmed on or before November 
1st, 1880, and (2) all assessments thereafter confirmed for 
improvements previously completed, if appealed from within 
two months after confirmation. Upon request of the com- 
mission, John Kelly, then city comptroller, made the following 
statement as to the assessments falling under the first of the 
two classes : 

Total amount of assessments confirmed prior to June 9th, 1880, on 

which arrears were due ^28,524,76!. 27 

Amount assessed upon the city . ....... ^3,239,587.11 

Amount vacated by the courts 2,651,897.85 

Amount paid by property-owners 14,175,428.52 

20,066,913.48 

Amount remaining unpaid April 30th, 1880 ^8,457,847.79 

In order to give due consideration to this vast amount of 
business, systematic action was absolutely necessary. The 
method of procedure was simple. According to the inter- 
pretation of the commission, the laws provided that only one- 
half of the cost of the work should be assessed upon the 
abutting property-owners, to the extent of one-half of the 
assessed valuation of the property. This cost, after eliminating 

^ For proceedings, see their Minutes. 



427] ' SPECIAL ASSESSMENTS. yy 

all elements of fraud which might taint the contracts, was to 
be charged proportionably upon the property benefited. After 
hearing the evidence submitted, the commission would decide 
upon the fair cost of the work at the time executed, and would 
reduce the assessment by whatever excess might be found to 
exist. 

The grounds of complaint were numerous. The greater part 
of these charges were for local improvements inaugurated 
under the corrupt Tweed regime or its immediate successors. 
The works had been carried on upon a scale of audacious ex- 
travagance, and in portions of the city where they were not at 
the time justified. Great avenues were laid out and improved 
largely for the purpose of giving fat jobs to favorite contractors, 
and to provide fine drives for the pleasure and convenience of 
others than the abutting property-owners. In these cases, the 
commission estimated the probable expense of constructing an 
ordinary street adequate to no more than the needs of the 
neighboring inhabitants, and vacated the excess of the assess- 
ment. The reduction ordered in one important decision 
amounted to forty-two per cent.^ 

Another factor for which allowance had to be made was that 
of excessive prices paid upon special contracts. The city 
authorities, in the years gone by, would advertise for bids and 
accept the lowest, by whomsoever offered^ The accepted con- 
tractor would perform a little of the work, then claim that his 
bid was ruinously low and throw over the contract. He and 
his bondsmen would be immediately released from their obliga- 
tions to the city, and the remaining portion of the work would 
be forthwith re-let at fabulous rates, either to the same con- 
tractor or to others who stood in collusion. Attempts by the 
assessment commission to squeeze out this fraudulent element 
gave wonderful results. The assessments upon the property- 
owners quickly melted away, forty-three per cent, in one in- 

^ Sixth avenue grading, Minutes, p. 167. 



78 SPECIAL ASSESSMENTS. ' [428 

stance, sixty-seven per cent, in another, and as much as eighty 
per cent, in still another.^ In another case, an assessment was 
reduced from $6yo.^o to $106.6^, a reduction of eighty-four per 
cent.^ 

A report to the board of aldermen under date of June 26th, 
1885, shows that up to that time the commission had acted 
favorably to complaints upon 6y assessment lists involving 
charges to the amount of ^^2,875,179.65. Under the decisions 
rendered, this sum was reduced by ^984,539.28 so as to stand 
at ;^ 1, 890,640. 3 7. Of these 6y assessments, 13 were wholly 
vacated. The commission ' during their entire existence 
vacated 15 assessments and reduced 59, a total of 74; the ex-, 
tent of the reductions was, in all probability, very close upon 
;^ 1, 200,000. 

§ 18. Statistics of Special Assessments. To endeavor to 
secure accurate statistics of special assessments is a most diffi- 
cult task. The eleventh census made an effort to present 
some figures regarding municipal finance, but the results are 
on their face incomplete and incorrect. According to census 
bulletin number Si, the receipts from all sources of "one hun- 
dred principal or representative cities of the United States " 
during the fiscal year 1889, were ;^359,024, 392, of which ^139, 
283,226 were derived from general taxes, and ;^ 14,676,092 
from special assessments. A great objection to these statistics 
consists in this, that the cities enumerated are neither the one 
hundred ** principal" nor the one hundred "representative" 
American municipalities. Moreover, even as to those cities 
included, the returns are in many cases manifestly incorrect.^ 
But while it is thus easy to criticise the census, to give more 
accurate statistics involves numerous difficulties. Yet the fol- 

1 1 20th street grading, Minutes, p. 385; 135th street grading, Ibid., p. 553; 
Ninth avenue grading, Ibid., p. 648. 

'^ Fifth avenue grading, Ibid., p. 212. 

•^ E. g., Brooklyn, Cleveland, Philadelphia, Minneapolis. 



429] SPECIAL ASSESSMENTS. 7^ 

lowing table has been compiled^ in order to show the receipts 
from special assessments for the year 189 1 in 25 cities contain- 
ing each over 100,000 inhabitants, as compared with the receipts 
from all sources and with the receipts from current taxes. 

Municipal Revenue for the Fiscal Year, 1891. 



Cities. 


Census 

Population 

1890. 


Receipts from all 
Sources. 


Receipts from 
Current Taxes. 


Receipts from 

Special 
Assessments. 


New York . . . 


1,515,301 


$86,838,343.79 


$30,733,818.71 


$2,541,856.11 


Chicago . . 




1,099,850 


30,247,317.17 


9,199,796.44 


6,407.394-19 


Philadelphia 




1,046,964 


23,400,495.79 


12,137,058.07 


1,063,331.57 


Brooklyn . . 




806,343 


23,061,698.60 


9,405,662.74 


284,216.54 


St. Louis, . 




451-77^ 


io,oi4.,6o6.7i 


3,405,198.46 


339,009.75 


Boston 2 . . 




448,477 


24,650,173.21 


9,653-072.65 


38,647.83 


Baltimore . 




434,439 


io,273,39X.79 


3,125,767.79 


142,167.12 


San Francisco 




298,997 


5,317,098.98 


2,517.503-51 


31,348,877.00 


Cincinnati . 




296,908 


7,082,355 78 


2,825,692.34 


519,679.17 


Cleveland . 




26i,3s3 


4,539,02292 


1,412,850.16 


499.363.04 


Buffalo * . . 




255,664 


9,979,661.51 


2,845.997-78 


2.451.468.85 


Pittsburgh . 




238,617 


4,650 876.28 


2,711,430-57 


'87,803.31 


Washington. 




230,392 


6,293,522.96 


2,290,536.88 


134,064.53 


Detroit. . . 




205,876 


3,642,130.16 


2,481,474.66 


223,826.28 


Milwaukee . 




204.468 


7,987,286.23 


i,963-955-i2 


45 c, 086. 68 


Newark . . 




181,830 


5,286,851.49 


1,819.376.32 


176,338.93 


Minneapolis. 




164,738 


4,583,431.98 


1,305,800.88 


669,168.27 


Jersey City . 




163,003 


3.536,656.58 


967,694.21 


295,694.81 


Omaha. . . 




140,452 


1,194.478-69 


761,195.98 


461,794-55 


Rochester. . 




133.896 


3.878,975.62 


1,676,813.73 


461.504.64 


St. Paul . . 




i33-'56 


5,598,654.95 


1,103,795.04 


561,887.08 


Providence . 




132,146 


7,473-888.22 


2,097,479.40 


47.743-71 


Denver . . 




106,713 


1,566,478.02 


731-133.30 


191,793.62 


Indianapolis 




i 105,436 


1,181,788.12 


525.322.70 


306,777.38 


Allegheny . 




I 105,287 

1 


1,630,230.07 


617645.91 


75.225.36 



A few words of explanation are required. Inconsistencies 
necessarily arise from the varying methods of accounting in 



^ From the finance reports of the particular cities. 

2 Nine months only, 

^' Censtis Bulletin for year 1889. 

* Eighteen months. 

5 Collection temporarily suspended in 



\; $1,029,351.50 in 1892. 



8o SPECIAL ASSESSMENTS. [430 

different cities. In no two municipalities can the same sys- 
tem of book-keeping be found, and this fact alone is sufficient 
to preclude strictly scientific comparison in matters of finance. 
The receipts from all sources have but little significance, in- 
asmuch as they may be abnormally swelled by revenue from 
extraordinary sources, such as gifts, devises, bond sales. 
Again, the current taxes are not always itemized in the finance 
reports ; so where the actual receipts under this head have 
not been shown, the general tax levy is here used to supply 
the place. Finally, the returns of special assessments are 
defective in several minor respects. First, whenever the 
work is performed directly at the abutters' expense, the item 
does not enter the public revenue at all. This is very com- 
mon in cases of foot-ways. It is also allowed for other im- 
provements in various cities, notably San Francisco and 
Chicago, where the property owners have the option of taking 
upon themselves the construction of the work in question. 
Secondly, where the contractor is paid by assessment bills to 
be collected by him, the amounts assessed are frequently en- 
tirely omitted from the treasurer's books. Thirdly, where the 
city receives by dedication new streets in suburban districts, 
it may have required, as a condition precedent to acceptance, 
that the cost of constructing the new roadway be defrayed by 
the property-owners benefited. If so, the sum expended 
would not enter the municipal budget. It is interesting to 
note that the system has brought the largest comparative 
returns in Chicago and Buffalo, nearly equalling in amount the 
revenue from current taxes in each of those places. 

§ 19. Classification according to Purposes. The table' on 
the opposite page gives a statistical view of the different 
purposes to which these assessments have been applied. It 
will be seen that the sums total in the two tables do not al- 
ways coincide. This arises from the fact that the amount of 
assessments collected in one year, is seldom the amount of 
the assessments levied in that year. Here the latter figure is 



43 1] 



SPECIAL ASSESSMENTS. 



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SPECIAL ASSESSMENTS. 



[432 



given whenever possible. Even these numbers present but an 
inadequate idea of the extent of the work annually performed 
by special assessment officials. In Chicago, there were over 
2000 separate assessments laid during the year 1891. In 
New York, during the same year, 100 street opening proceed- 
ings were considered by the department of law, and 345 
assessment lists were received by the board of assessors — a 
total of 445. Of these, 17 and 239 respectively reached the 
final stage of confirmation. 

§ 20. Variations in Receipts from Special Assessments. 
While receipts from special assessments constitute a form of 
extraordinary revenue, yet their variations are on the whole 
not so great as might be expected. The truth of this state- 
ment may be gathered from the figures below, which show the 
various returns in several cities for a period of eleven years. 
The omissions are due to lack of data, not to absence of special 
assessments in those years, and the same reason explains why 
partial figures for particular classes of improvements only are 
presented for New York and for Providence. 

Annual Variations in Assessments. 



Year. 


New York 
Sinking Fund 
Assessments. 


Chicago Total 

Assessments 

Levied. 


Philadelphia 
. Total 
Assessments, 


Omaha 

Total 

Assessments. 


Providence 

Sewer 

Assessments. 


1881 


^651,723.23 
994,578.29 
993^957-25 

i'i50,550.58 
876,119.82 
628,336.08 

513.238.57 
460,726.82 
216,760.40 
304,387.49 
301,226.31 


$1,227,169.71 
i.395>372-98 
2,232,757.04 
2,857,905.28 
2,889,544.80 

3.307.567-99 
3,160,474.67 

3.655.956.78 
4,220,869.93 
6,987,155.48 
8,790,443-29 






^104,811.19 

7.596.85 
9,468.46 
18,344.90 
17.254-43 
3=^.437-73 
26,675.75 
43-939-96 
32,080.34 
27,484.08 
28,885.35 


1882 






1883 
1884 
1885 
1886 















1887 
1888 
1889 
1890 
1891 


^444,500.75 
1,076,685.00 
1,085,431.16 




^1,470,086.54 

892,328.29 

1,032,345.24 

461,794-55 


1.063,331-57 



§ 21. Statistics of Assessment Arrearages and Sales. Sta- 
tistics of arrearages of assessments are not readily obtained. 



433] SPECIAL ASSESSMENTS. 83 

The general testimony of assessment officials is, that although 
a greater proportionate number of such impositions become 
delinquent than of general taxes, still the loss entailed upon 
the city treasury is not so large. We have seen that in Brook- 
lyn there were assessment arrears to the amount of ;^ 1,386, 
992.37 in 1880, while the arrears of general taxes were 
$6,243,069.32. In New York City, at the same time, the 
assessment arrears were $8,457,847.79; this sum has since 
been materially lessened, but at present the uncollected gen- 
eral taxes of the years 1841 to 1891 are $15,505,526.16. In 
Newark, the unpaid assessments amounted in 1891, to $555, 
534.18; in Jersey City they were $2,187,108.66 as against 
$3,399,290.41 of unpaid general taxes. These unpaid assess- 
ments can frequently be collected only by sale of the property 
affected. We might have expected that New York City 
would have taken seriously to heart the costly lesson of the 
assessment commission of 1880, but we find that in Novem- 
ber, 1 89 1, a public sale was held at which 4820 tax titles were 
disposed of for delinquent assessments, dating some of them 
from as far back as 1852 and 1854, for sums ranging from two 
cents up to $15,189.63, and adding up over one and a half 
millions of dollars.^ There were sold in Chicago in 1891, 
9,124 parcels of land to satisfy judgments for arrears of as- 
sessments. In Washington, on the other hand, assessment 
sales during the year amounted to only $401.85. 

^ See the Notice of Sale, a huge folio pamphlet of 63 pages. 



CHAPTER IV. 

THE LAW OF SPECIAL ASSESSMENTS. 

§ I. The Legal Defiitition. In a series of decisions reaching 
over the past three-quarters of a century, the courts of this 
country have evolved a body of law touching the subject of 
special assessment for benefit tolerably complete and compara- 
tively harmonious. While this legal interpretation has rested 
upon the provisions of multitudinous statutes passed by nearly 
as many different legislative bodies, yet, considered as a whole, 
the general principles underlying the main questions involved 
have, notwithstanding a few still unsettled points, been satis- 
factorily established. In a broad sense, taxes undoubtedly 
include assessments, and the right to impose assessments has 
its foundation in the taxing power of the government; and yet 
in practice, and as generally understood, the law draws a broad 
distinction between the two terms. This distinction has been 
thus defined : 

"Taxes . . . are public burdens imposed generally upon the in- 
habitants of the whole state or upon some civil division thereof, for 
govermental purposes, without reference to peculiar benefits to par- 
ticular individuals or property. Assessments have reference to im- 
positions for improvements which are especially beneficial to par- 
ticular individuals or property, and which are imposed in propor- 
tion to the particular benefits supposed to be conferred. They are 
justified only because the improvements confer special benefits, and 
are just only when they are divided in proportion to such benefits." ^ 

1 Roosevelt Hospital z;j. The Mayor of New York, 84 N. Y. 108, p. 1 12. For 
other definitions see Matter of Van Antwerp, 56 N. Y., 261 ; Mayor, etc., of Bir- 
mingham vs. Klein, 89 Ala., 461; Taylor z/j. Palmer, 31 Cal., 240; City of 
Bridgeport vs. N. Y. & N. H. R. R. Co., 36 Conn., 255 ; Alexander & Wilson 
vs. The Mayor of Baltimore, 5 Gill, 383. 

84 [434 



435] SPECIAL ASSESSMENTS. 85 

Assessments, then, though a species of tax, are understood 
to mean a special imposition levied in order to defray Lhe ex- 
pense of a specific improvement, upon those property-owners 
to whom particular advantages accrue, and in the ratio of those 
advantages. 

§ 2. Legal TJieorics. These impositions are based on the 
idea of equivalents. As Judge Miller says: 

" The principle upon which a corporation tax for the improvement 
of real estate is founded is quite famihar and well understood. It is 
based upon the theory that the owner of the property assessed is to 
receive a benefit corresponding with the amount assessed, and that 
this is to be paid to meet the cost and expense of the improvement. 
It is, therefore, of no consequence what the value of the lots may be, 
provided the enhanced benefit is equal to the assessment." ' 

In the eye of the law the person who pays the assessment 
has received, or is about to receive, advantages to his property 
over and above the advantages received by the other members 
of the community, and equal to or greater than the sum de- 
manded of him. In this particular lies a most important dis- 
tinction between a tax and an assessment. As stated in a 
very recent decision : 

" A tax, it is said, is a contribution to the general fund ; the . 
amount is taken from the individual, and nothing which benefits him 
individually, as distinguished from the mass of citizens, is given in 
place of it. He pays, and by the amount he pays is poorer than 
he was before. Not so with an asse,ssment of the class we are con 
sideling. The property-owner pays it, but in legal contemplation, 
he loses nothing. He receives the value of his money in the bet- 
terment of the property, and in addition to this, he is benefited to 
the same extent that all other citizens are, in that a thoroughfare of 
the city in which his property is situated and in which he probably 
hves, is improved. The authorities almost universally take such an 
imposition, though confessedly laid under the taxing power, out of 
the category of taxes and taxation as those terms are employed in 

J Matter of Mead, 74 N. Y., 216, p. 221. 



86 SPECIAL ASSESSMENTS. [436 

organic limitations on legislative power to levy or authorize the levy- 
ing of taxes and in general statutes."^ 

The payment of a special assessment for benefit, then, is 
nothing more than an exchange. The improvement effects an 
enhancement in the value of the adjacent real property for 
which the owner pays its market value. But though ostensibly 
an exchange, it is a forced exchange. It may be required 
without the owner's consent, and often in the face of his direct 
opposition. How can such interference with private property be 
justified ? By what authority can the government constitution- 
ally compel a class of citizens to pay for an improvement which, 
though it may confer perceptible benefits, is neither demanded 
nor desired by them? A review of the judicial decisions 
which have attempted to solve this problem will show that the 
legal theories of special assessment have passed through three 
stages of development — stages separate and distinct in spite 
of broad over-lapping and frequent confusion. 

§ 3. Under the Police Power. First, we have a number of 
cases in which the levy of special assessments is supported on 
the ground of the police power of the state. ** Police power " 
is such an elastic formula that the judges would almost in- 
voluntarily turn to it for an explanation of every new burden 
laid upon the citizen. This was all the more natural in this 
instance, since the earliest objects for which special assess- 
ments were levied were analogous to sanitary regulations. 
The property- owner was required to grade or drain his lot or to 
lay a side-walk in front of it, and in case of failure to do so, the 
municipal authorities undertook the work on their own account, 
and caused the expense to be assessed upon the party benefited. 
This came clearly under the police power to abate nuisances, 
and could easily be regarded as a penalty for neglect to carry 
out the orders of the public officials. But the application of 
this theory is necessarily very limited in its scope ; it must 

^ The Mayor, etc.^ of Birmingham vs. Klein, 89 Ala,, 461, p. 466. 



437] SPECIAL ASSESSMENTS. 87 

permit the property-owner the privilege of effecting the im- 
provement for himself, and can allow the state to interfere only 
when there is a clear case of default. The principle of special 
assessment for benefit was soon pushed forward into new 
directions, and a broadej basis than the police power became 
necessary for its support. 

§4. Under tJie Potver of Eminent Domain. So the second 
theoretical stage, like the first, was conditioned by the purposes 
to which the system was applied. It was developed out of the 
process of opening new streets in the larger cities. From this 
operation it was seen that every new thoroughfare greatly 
enhanced the value of the abutting property. Compensation 
was to be made for the injury inflicted by the exercise of the 
right of eminent domain, but in this case the owner was not 
damaged, to say nothing of being positively benefited. Why 
pay damages to a man who has not been injured? The only 
way to arrive at a just result, it was said, is to deduct the 
value of the benefits from that of the property taken and to 
award the remainder, if any, as compensation. This process 
was apparently nothing more than the exercise of the power of 
eminent domain ; and by extending its application, that power 
was invoked to support a compulsory contribution when the 
benefits conferred exceeded in value the property taken for the 
new street. This fact must account for and explain the state- 
ment frequently niet with in the early reports, that a special 
assessment is not a tax. A tax is a burden imposed by law ; 
here we have no burden, and hence no tax. The eminent 
domain theory, however, soon encountered insurmountable 
difficulties. All the ingenuity of the lawyer was needed to 
make it cover impositions for benefit upon persons from whom 
no real property was taken, and with the inauguration of 
special assessments for paving, parking, grading, etc.^ it broke 
down entirely. The whole system was on the verge of 
destruction when the highest appellate court of New York, in 
the leading case of The People vs. The Mayor, etc., of Brooklyn, 



88 SPECIAL ASSESSMENTS. [438 

reversed the decision of an inferior court, which had held that 
special assessment, being an exercise of the power of eminent 
domain without adequate compensation for the property taken, 
was unconstitutional and void, and placed the system clearly 
and distinctly upon the foundation of the taxing power/ 

§ 5. Under the Taxing Power. The third stage of legal 
theory then vindicates the phrase " taxation by special assess- 
ment for benefit." In whatever respects assessments may 
differ from taxes, they are levied under the taxing power; they 
are not included in the power of eminent domain. The dis- 
tinction between these two powers is clearly pointed out by 
Judge Ruggles in the case just cited, contributions in the form 
of taxation being demanded of the citizen only as his share of 
a public burden which is to be borne by him in conjunction 
with all other taxable citizens, while contributions demanded 
under the power of eminent domain are special exactions in 
addition to his share of the public burden. That the imposi- 
tion does not reach all subjects within the political district, 
does not in itself brand it as a special exaction within the scope 
of eminent domain, nor does it make it the less a tax. Judge 
Ruggles says: 

"The people have not ordained that taxation shall be general so 
as to embrace all persons or all taxable persons within the state or 
within any district or territorial division of the state ; nor that it 
shall or shall not be numerically equal as in the case of a capitation 
tax ; nor that it must be in the ratio of the value of each man's- land, 
'''or of his goods, or of both combined : nor that a tax *must be co- 
extensive with the district or upon all the property in a district which 
has the character of and is known to the law as a local sovereignty ;' 
nor have they ordained or forbidden that a tax shall be apportioned 
according to the benefit which each taxpayer is supposed to receive 
from the object on which the tax is expended. In all these particu- 
lars the power of taxation is unrestrained.""^ 

^The People vs. The Mayor of Brooklyn, 4 N. Y., 419, reversing case of same 
title, 6 Barb., 209. 

'^ People vs. The Mayor of Brooklyn, 4 N. Y., p. 427. 



439] SPECIAL ASSESSMENTS. g^ 

And Chief Justice Ames, of Rhode Island, in an opinion 
written but a few years later, says with regard to a similar 
objection : 

"It is evident that it gains even a fanciful or formal support for its 
existence only when the law is to be applied to the case of one, part 
only of whose land is taken for the street, leaving a part benefited, or 
to one whose land is taken in one place, he having land benefited in 
another, in which cases the law provides for a set-off of benefits 
against damages — the balance either way, only, to be reported by 
the commissioners or a jury. We say formal or fanciful only, be- 
cause it must be evident that after all the real question is, Can there 
be in such case a constitutional assessment for benefits upon estates 
benefited by the improvement ; for if there can be, no reason can be 
given why a man should be excused from this assessment upon one 
part of his estate really benefited because another part of it has been 
taken to make the improvement." ^ 

Many, if not all, of the confused utterances concerning the 
distinction between the powers of eminent domain and of taxa- 
tion found running through the whole body of law upon this 
subject, arise from this, that the two operations of assessing 
damages and of assessing benefits have been hopelessly con- 
founded. Just because, in many instances, the same set of 
persons act as commissioners to estimate the value both of 
property taken and of benefits conferred, the courts often 
assume that the two functions derive their authority from the 
same source. In only a few cases have they been plainly dis- 
tinguished. In taking a man's land, he is damaged to the full 
market value of the property, and should be compensated to 
that extent. Whether he is benefited by the improvement is 
a separate inquiry, to be ascertained relatively to the entire 
benefit conferred. 

§ 6. The Essential Limitations. A special assessment then is 
in one sense a tax. It is a compulsory contribution de- 
manded of the taxpayer by the government as his share of 

1 Matter of Dorrance Street, 4 R. L, 230, p. 242, 



QO SPECIAL ASSESSMENTS. [440 

a common burden. Yet, although special assessments 
come under the taxing power, the courts have generally 
concluded that they are not taxes within the technical 
meaning of that term as it is employed in commonwealth 
constitutions restricting the legislature in their exercise of the 
power of taxation.^ Constitutional limitations requiring uni- 
formity and equality of taxation and assessment upon a true 
money valuation, are held, with four or five exceptions, to 
apply to taxation for general purposes only, and consequently 
to be inapplicable to special assessments.'"^ As we have seen, 
but very few commonwealths have any specific provision what- 
ever upon the subject in their organic laws. Are there, then, 
no restrictions upon the legislative power of special assessment, 
or are there limitations inherent in the very conception of the 
term — limitations sufficiently determinable for interpretation by 
the courts? This question has been answered in the affirma- 
tive, and legal authorities have attempted to define the limits 
beyond which a legislature may not pass. They give as the 
essential characteristics of taxation, first, that it must be for a 
public purpose, and secondly, that it must aim at equality and 
uniformity by some method of apportionment.^ To these may 
be added, as relating exclusively to special assessments, that 
the imposition must not exceed the benefit. We shall do well 
to consider these propositions in some detail. 

§ 7. Public Purpose. First. Special asessments may be au- 
thorized for public purposes only. Private benefits may be 
involved — in fact, must not only be involved but must also be 

^Cooley, Taxation, p. 636; also pp. 626 to 636, where provisions and cita- 
tions of the separate commonwealths are given. 2 Dillon, p. 907 et seq. 

2 Mayor of Birmingham vs. Klein, 89 Ala., 461 ; Emery vs. San Francisco Gas 
Co., 28 Cal., 345; Hayden vs. City of Atlanta, 70 Ga., 817; Hines z^j. Leaven- 
Vk'orth, 3 Kan., 186; Yeatman vs. Crandall, 1 1 La. Am., 220, Motz vs. City of 
Detroit, 18 Mich., 495; Daily vs. Swope, 47 Miss., 367; Garrett vs. City of St. 
Louis, 25 Mo., 505; Cain vs. Commissioners, 86 N. C, 8; Roundtree vs. City of 
Galveston, 42 Tex., 612; Gilkeson vs. Frederick Justices, 13 Gratt., 577. 

^Cooley, Con^tihitional Liviitatiotis, chap. 14; also 2 Dillon, sec, 737. 



44 1 ] SPECIAL ASSESSMENTS. 9 1 

substantial, certain and capable of being realized within a rea- 
sonable and convenient time — but their object must be oiic in 
which the public is interested.^ The doctrine that the power 
of taxation can not be exercised for other than public purposes 
is most authoritatively set forth in the case of the Loan Asso- 
ciation vs. Topeka, in which the opinion was written by Justice 
Miller.' It reads: 

"To lay with one hand the power of the government on the prop- 
erty of the citizen and with the other to bestow it upon favored in- 
dividuals to aid private enterprises and build up private fortunes, is 
none the less a robbery, because it is done under the forms of law 
and is called taxation. This is not legislation. It is a decree under 
legislative forms. Nor is it taxation. . . . There can be no lawful 
tax which is not laid .for a public purpose." '^ 

However difficult it may be to apply this limitation to cases 
of ordinary taxation, no such difficulty is found in its relation, 
to special assessments. No one can tell which part of the 
general tax levy is to be expended for any specific object, and 
the limitation as to purpose belongs scientifically rather to the 
power to appropriate than to the power to tax.* Not so with 
special assessment for benefit. Here appropriation and assess- 
ment go hand in hand, and every taxpayer would be a party 
aggrieved should the proceeds be laid out for the ends of 
private gain. But while it may be easy to bring a definite 
case before the courts, whether or not a particular purpose is 
public is a question to be decided in the light of all the sur- 
rounding circumstances. 

The chief purposes to which the system of special assess- 
ment for benefit has been adapted are those connected with 
the betterment of streets within the bounds of municipal cor- 
porations. As Judge Sawyer contends: 

1 Matter of Fourth Avenue, 3 Wend., 452. 

2 20 Wallace, 655. 
■^ Ibid., p. 664. 

* Burgess, Political Sciejice and Comparative Constitutional Lai.v, ii, p. 152. 



g2 SPECIAL ASSESSMENTS. [4^3 

"The improvement of a public street in a city, to be thereafter 
used and controlled by the public, is undoubtedly a public work. 
But it is equally clfear, as a general proposition, that the improvement 
of a street is more beneficial to the local public, or the immediate 
district in which it is located, than to the whole city. But this 
fact renders the work no less one of a public character." ^ 

Some improvements sustained by the system do not come 
strictly under this head, but all have distinct elements both of 
public and of private benefit. A few examples will demonstrate 
the limits within which the decided cases have permitted these 
two elements to vary. How far may the public benefit pre- 
ponderate over the private? The repavement of a street by 
special assessment, although already paved at the expense 01 
abutting owners, has been repeatedly upheld, even where the 
pavement replaced has been in fair condition and entirely satis- 
factory to the parties assessed.^ A public square is for public 
use whether intended to be traveled upon or not.^ A number 
of commonwealth courts have sanctioned assessments for turn- 
pikes and highways through agricultural lands, on the ground 
that the property in the vicinity was specifically enhanced in 
value, but the Pennsylvania tribunals have come to the oppo- 
site view that in such cases the private interest is too small to 
form an adequate basis for special assessment for benefit.^ In 
this connection, the case of Thomas vs. Leland is something 
of an anomaly.^ The legislature of New York passed an act 
in the spring of 1835, authorizing three designated commis- 
sioners to assess the sum of ^41,000 ** upon the owners of all 
real estate situated in the said city [of Utica] in proportion to 
the benefits which each shall be deemed to have acquired by 



2 City of Lafayette vs. Fowler, 34 Ind., 140. 

3 Owners of Ground vs. The Mayor of Albany, 15 Wend , 374. 
* Washington Avenue, 69 Pa. St., 352. 

5 24 Wend., 65. 



44 s] SPECIAL ASSESSMENTS. ' q^ 

the location of the northern terminus of the Chenango canal 
in the city of Utica, as nearly as can be estimated." The 
money, when collected, was to be applied to the relief of cer- 
tain private citizens who had entered into a bond for that sum 
as an inducement to procure the terminus of the canal in Utica. 
When the matter was brought before the court, the latter 
decided that these facts did not detract from the public purpose 
of the tax, and upheld the proceedings on the ground that in- 
dividual personal benefit, aside from the benefit received as a 
member of the community, was not necessary. This decision 
carries the doctrine to the extreme. It would scarcely be fol- 
lowed by the courts of to day. 

On the other hand, there are cases which sustain a minimum 
of public benefit, and a maximum of private benefit. The 
various acts lor the reclamation of swamp lands, for the drain- 
age of overflowed fields, for the erection of levees, have all 
been held to contain an element of public interest on the side 
of improved sanitary conditions. The courts, too, have com- 
pelled the commissioners to include in their awards, for the 
payment of which assessments were to be levied, damages to 
the franchise of a turnpike company claiming to have been 
injured by the construction of a street which permitted people 
to avoid the toll-gate.^ In another instance, the Hon. Samuel 
B. Ruggles m.ade a report as referee "that if the place of 
burial be taken for public use, the next of kin may claim to 
be indemnified for the expense of removing and suitably re- 
interring the remains," and the money for this indemnifica- 
tion was forthwith assessed ** upon the property-owners 
benefited."^ The case of Litchfield vs. Vernon goes even one 
step further than this.^ In April, 1859, ^^ ^^^ passed the New 

^Matter of Flatbush Avenue, i Barb., 286; Matter of Hamilton Avenue, 14 
Barb., 405 ; The Seneca Road Co. vs. The Auburn & Rochester R. R. Co., 5 
Hill, 170. 

2 Matter of Beekman Street, 4 Bradford, N. Y., 503. 

^41 X. Y., 123; People vs. Lawrence, 36 Barb., 177, affirmed 41 N. Y., 137. 



94 SPECIAL ASSESSMENTS. [444 

York legislature entitled "an act to provide for the closmg of 
the entrance of the tunnel of the Long Island railroad com- 
pany, in Atlantic street in the city of Brooklyn, and restoring 
that street to the proper grade, and for the relinquishment by 
the railroad company of its right to use steam power within 
said city." In order to defray the expense of this so-called 
improvement, the statute subjected the owners of premises 
within a specified district to special assessments for benefit to 
that amount. In this suit, prosecuted for the payment of an 
assessment, the whole proceedings were questioned from the 
stand- point of constitutional law. Tlie defendant offered to show 
that the entire scheme was intended for the benefit of the 
railroad company and not of the land-ovv^ners, that the closing 
of the tunnel and the removal of steam from the street con- 
ferred no benefit, but rather inflicted injury upon the property 
in question, and although opinion in general was divided on 
the subject whether or not the existence of the tunnel and the 
use of steam upon the street were beneficial or injurious, yet 
the offer was refused and all testimony on that point excluded. 
Upon appeal by the defendant, the constitutionality of the 
acts Vs/as upheld, although a new trial was granted for 
technical defects. Judge Grover, in his opinion, argued that 
the assessment was made in the exercise of an unlimited 
power of taxation by the legislature: 

" This local assessment . . . was based upon the ground that the 
territory subjected thereto, would be benefited by the work and change 
in question. Whether so benefited or not, and whether the assess- 
ment of the expense should, for this or any other reason, be made 
upon the district, the legislature was the exclusive judge. The con- 
stitution has imposed no restriction upon their power in this re- 
spect. The counsel for the appellant concedes that this is true so 
far as closing the tunnel and grading the street are concerned, but 
insists that compensating the company for abandoning the use of 
steam and substituting therefor horse-power, does not come within 



« 



445] SPECIAL ASSESSMENTS. ^5 

the like principles. I am unable to see upon what ground the 
power of the legislature can be limited in this regard."^ 

§ 8. Appoi'tionment. Second. Special assessments must be 
levied according to a definite rule, and within a fixed district. 
The assessment upon the owner of a lot is not limited to the 
expense incurred for the improvement in front of his particu- 
lar lot.'^ If it were so limited, it would be possible to make 
it cover an arbitrary exaction which could not be constitu- 
tionally upheld.^ The power to apportion belongs to the 
legislature. So it is said in one case : 

"This unlimited power to tax necessarily involves the right to 
designate the property upon which it is to be levied — in other 
words, to apportion the tax. And except in cases where the pro- 
ceeding is merely colorable, and it is really and substantially an 
exercise of the right of eminent domain, the judicial tribunals can 
not interfere with the legislative discretion, however erroneous it 
may be."* 

The legislature, however, need not exercise the power 
directly; they may delegate it to the municipal authorities, or 
they may permit the commissioners who estimate the benefits 
to fix the district for assessment also. In such cases, the 
statute indicates the principle on which the limits of the dis- 
trict are to be ascertained, as on all real estate " benefited," 
on all "in the vicinity," or on "adjoining" or " abutting " 
property.^ But while the property to be assessed must in 
some manner be determinable, the district need not be fixed 
in advance.^ It must necessarily depend more or less upon 

141 N. Y., p. 133. 

■^ Ex parte The Mayor, etc., of Albany, 23 Wend., 277. 

^ Woocibridge vs. The City of Detroit, 8 Mich., 274; State vs. City of Portage, 
12 Wis., 562. 

* Scovill vs. City of Cleveland, I Ohio St., 126, p. 138. 

3 Burroughs, Eaxation,%tQ.. 146. 

^ People vs. The Mayor, etc., of Brooklyn, 4 N. Y., 419. 



q6 special assessments. [446 

the extent of the benefits/ Where, however, it is fixed by the 
legislative body, a conclusive presumption is raised that no 
property outside of that district is benefited; and if the com- 
missioners include such property, the assessment is invalid.^ 
When it is left to the commissioners to fix the district upon 
the principle of benefits, no property benefited can legally be 
omitted.^ The commissioners can not assess for benefit lands 
lying outside of the designated district;* nor can the munici- 
pal authorities prescribe a district, so as to include property 
situated outside the municipality.^ The power to fix the dis- 
trict, whether resting in the legislature, or delegated to the 
municipal authorities, is discretionary and judicial in its 
nature. " The levying of the assessment," says Judge Cur- 
rier, " was an exercise of the taxing power. That is conceded. 
The legislature, therefore, in the exercise of this power, was at 
liberty in its discretion to impose the whole burden of the 
cost of the proposed improvement upon the neighboring pro- 
prietors to be benefited thereby; and so it might in its dis- 
cretion- limit or extend the district to be taxed, and thus in- 
crease or diminish the sum to be paid by any particular pro- 
prietor."^ How small the district may be, is a point undecided. 
It should probably be determined not a priori, but as each 
case arises. The courts would certainly not interfere unless 
the action were shown to constitute an arbitrary exaction. 
How large the district may be made, is also undecided, but 
this question has been partly answered by our third essential 
limitation. 

§ 9. Not to Exceed Benefits. Third. A special assessment 

1 State vs. District Court of Ramsey County, 33 Minn., 295. 

2 Alexander and Wilson vs. Tlie Mayor, etc., ot Baltimore, 5 Gill., 383, 
■^ City of Chicago vs. Baer, 41 111., 306. 

* Turpin vs. The Eagle Creek and Liitle White Lick. Grand Road Co., 46 
Ind., 45. 

5 Matter of Lands in the Town of Flatbush, 6o N. Y., 398. . 
^ Uhrig vs. City of St. Louis, 44 Mo., 458. 



447] SPECIAL ASSESSMENTS. c^-j 

must not exceed in amount the estimated value of the advant- 
age accruing from the improvement for which it is levied. A 
careful writer on constitutional law formulates the principle in 
these words : 

"The conclusion to be drawn from the main current of decisions 
may therefore be said to be that, notwithstanding some apparent ex- 
ceptions, local assessments are consititutional only when imposed to 
pay for local improvements, clearly conferring local benefits on the 
property so assessed, and to the extent of those benefits. They can- 
not be imposed when the improvement is for the general good, with- 
out an excess of local benefit to justify the charge.''^ 

For the same reason that lands outside of the district and 
not benefited by the improvement, are not to be included in 
the assessment list, so property to which benefits do accrue 
ought not to be assessed over and above the value of those 
benefits. If special assessments are based on equivalents, then 
nothing more than an equivalent can justly be taken from the 
taxpayer. Such a sum, it is argued, would, so far as it ex- 
ceeds actual benefits, be clearly the taking of private property 
without due compensation; it would be an arbitrary act of 
confiscation, not taxation. But though this may be said to be 
the general rule, it can not be termed a universal rule. 

The courts of New York, in their early decisions, acted on 
the principle that unless the benefits accruing to neighboring 
lot-owners equalled the whole cost of the improvement, the 
special assessment could not be approved. As far back as 
1830, they said that " if the benefit to the owners of property 
within the range of assessment is less than any contemplated 
improvement will cost, they can not upon any just con- 
struction of the act be made to pay the whole expense."^ 
And again four years later, the same tribunal declared that 
" when property is not and can not be benefited to the extent 

^ Hare, American Constitutional Law, vol. i., p. 310. 
-' Matter of Fourth Avenue, 3 ^Yen(i,, 452, p. 454. 



^8 " SPECIAL ASSESSMENTS. [4^8 

of the amount assessed upon it, it is the duty of this court to 
send back the report until property can be found sufficiently 
benefited to defray the expense, or until the proceedings shall 
be discontinued."^ Yet there was no intimation that this ex- 
cess should be defrayed by the public at large, inasmuch as 
the statute contemplated throwing the whole burden upon the 
adjacent property-owners. This doctrine has, however, been 
somewhat modified by the more recent decisions of the New 
York courts, which now seem reluctant to fix any limitations 
upon the legislative power as regards the amount of the 
assessment to be levied. Says Judge Finch (1883) : 

"There is no force in the objection that after fixing the assessment 
district the total expense can not be assessed upon the property in- 
cluded, but only so much as is found to be the actual benefit. 
That is but another form of saying that the legislature can not impose 
the whole cost upon the area which it decides is benefited to that 
extent. The case of Stuart vs. Palmer expressly holds that the leg- 
islature may cause local improvements to be made, and authorize 
the expense thereof to be assessed upon the land benefited thereby. 
The resolution of the county board imposes upon each owner his 
share of the cost in proportion to his benefit accruing."'^ 

Similarly an Ohio court has declared that though special 
assessment rests upon the principle of equivalents, yet it must 
in its very nature be fallible, and so, if the rule of apportion- 
ment be equal and uniform, the fact that the property is not 
benefited will not invalidate the assessment.^ And in Vermont, 
Judge Redfield gave it as his opinion that the benefit need not 
be actual so long as there is a possibility of the benefit for 
which the assessment is made.* 

A change has also taken place in the interpretation of the 

1 Matter of Albany Street, 1 1 Wend., 149, p. 153, See also Owners of Ground 
vs. The Mayor of Albany, 15 Wend., 374. 

'''Matter of Church, 92 N. Y., I, p. 6; see also Stuart vs. Palmer, 74 N. Y., 183. 
3 Northern Indiana R. R. Co. vs. Conelly, 10 Ohio St., 159. 
* Allen vs. Drew, 44 Vt. 174. 



449] SPECIAL ASSESSMENTS. C^g 

law b}' the New Jersey courts, but in a direction just opposite 
to the development in New York. Judge Elmer expressed the 
New Jersey view in an early case thus : 

*'The expense of opening and improving roads and streets is un- 
doubtedly a governmental burden, and may be defrayed, at the 
discretion of the legislature, by taxes imposed on the state at large, 
or upon a particular district, or upon a particular class of persons or 
property, or upon the particular property benefited by the expendi- 
ture in the ratio of the advantage derived. The constitution of this 
state has imposed no limits on this power, except that it can only be 
exercised as a legislative power. Taxes to be such and to come 
within the legislative power, must perhaps operate upon a com- 
munity or a class of persons or property by some rule of apportion- 
ment ; but they may be universal or limited, discriminating or gen- 
eral, equal or unequal."^ 

The relation between the extent of the benefits and the 
amount of the assessment was taken to be a question for the 
legislative and not for the judicial branch of the government. 
A series of extravagant and unnecessary local improvements 
gave the courts occasion to modify their opinions. Already 
in 1866 in the Tidewater case, involving an assessment for 
draining agricultural lands, Chief Justice Beasley had said: 

"The consideration for the excess of the cost of the improvement 
over the enhancement of the property, within the operation of this 
act is the public benefit ; how, then, upon any principle of taxation, 
can this portion of the expense be thrown exclusively upon certain 
individuals? The expenditure of this portion of the cost of the 
work can only be justified op the ground of benefit to the public. 
I am aware of no principle which will permit the expenses incurred 
in conferring such benefit upon the public to be laid in the form of 
a tax upon certain persons who are designated, not indeed by name, 
but by their description as owners of certain lands."' 

In other words, whenever the special benefit accruing to 

1 State vs. City of Newark, 27 N. J. L., 185, p. 19J. 

2 18 X. J. Eq., 5 18, p. 528. 



lOO SPECIAL ASSESSMENTS. [450 

private individuals from any local improvement is less than 
the cost of such improvement, the excess of cost must be paid 
from the public treasury. This doctrine gained undeserved 
notoriety in the celebrated Agens case, and has since been 
generally applied.^ But where an act can be considered to 
permit assessments only to the extent of the benefits, it will be 
so interpreted f nor is the power to raise money for street im- 
provements by general taxation, inconsistent with the power to 
levy special assessments for the same purpose, in so far as the 
latter do not exceed the actual benefits.^ 

As soon as the question arose in Illinois, it was decided in 
the same way. While the entire cost of an improvement 
might legally be assessed upon the property-owners there must 
be a possibility that, in case the cost should exceed the bene- 
fits, some part of the expense might be charged upon the 
municipality. The court, therefore, laid down this rule: 

" In these improvements the whole public are interested, and that 
public should pay the cost on the principle we have suggested ; that 
is, assess to each lot the special benefits it will derive from the im- 
provement, charging such benefits upon the lots, the residue of the 
cost to be paid by equal and uniform taxation.""^ 

And the reasoning of Justice Breese in this case, which de- 
clared that an assessment by frontage did not secure an appor- 
tionment according to benefits and was therefore unconstitu- 
tional, has been largely followed in other commonwealths, al- 
though not always leading to the same result. In applying the 
constitution of 1870, however, the Illinois courts have made use 
of a specific provision authorizing special taxes for local im- 

1 Matter of Application for Drainage of Lands, 35 N. J. L., 497; State vs. Mayor, 
etc., of Hoboken, 36 N. J. L., 291; State, Agens prosecutor, vs. Mayor, etc., of 
Newark, 37 N. J. L., 415. 

2 Matter of Application for Drainage of Lands, 35 N, J. L., 497. 

3 State vs. Township of West Orange, 40 N. J. L., 122. 
* Ciiy of Chicago vs. Larned, 34 111., 203, p. 2S2. 



a 



4 5 I ] SPE CIAL A SSESSMEXTS. 1 q r 

provements, as a pretext for practically over- ruling the Larned 
case. Justice Sheldon says : 

"Whether or not the special tax exceeds the actual benefit to the 
lot is not material. It may be supposed to be based on a presumed 
equivalent. The city council have determined the frontage to be 
the proper measure of probable benefits. That is generally con- 
sidered as a very reasonable measure of benefits in the case of such 
an improvement, and if it does not in fact, in the present case, rep- 
resent the actual benefits, it is enough that the city council have 
deemed it the proper rule to apply." ^ 

In this manner a distinction is drawn between a special tax 
and a special assessment ; a special tax may exceed the bene- 
fit conferred, a special assessment must be commensurate with 
the benefit. 

Kentucky, too, has given explicit assent to the doctrine that 
the assessment necessarily demands an equivalent benefit. 

"The power to impose this character of taxation, must to some 
extent depend upon the fact that the persons taxed are correspond- 
ingly benefited by the expenditure thereof. The courts would hesi- 
tate to interfere in cases in which it may be a question of doubt as 
to whether the persons taxed receive commensurate benefits ; but 
where the taxation is so excessive as to render it doubtful whether 
the property to be benefited will suffice to pay the assessment against 
it, they can no longer be deemed taxation. To enforce their collec- 
tion would be the exercise of absolute and arbitrary power over the 
property of the citizen — a power which, under our form of govern- 
ment, does not exist even in the largest majority." ' 

Similar views have been expressed by the courts of California 
and Mississippi,'^ and Pennsylvania has reached the same re- 
sult in a negative manner.* In the latter commonwealth it is 

^ ^Yhite vs. the People, 94 111., 604, p. 613. 
- Broadway Baptist Church vs. McAtee, 8 Bush, 508, p. 517. 
^Taylor vs. Palmer, 3I-Cal., 240; Macon vs. Patty, 57 Miss,, 378. 
* Hammett vs. Philadelphia, 65 Pa. St., 146; Washington Avenue, 69 Pa. St., 
352- 



102 SPECIAL ASSESSMENTS. [452 

held that the expense of improvements conferring general 
benefits only, can not be defrayed by special assessment. To 
use the words of Justice Sharswood : 

" Local assessments can only be constitutional when imposed for 
local improvements clearly conferring special benefits on the prop- 
erties assessed, and to the extent of those benefits. They can not be 
so imposed when the improvement is either expressed or appears to 
be for the general public benefit."^ 

General benefits — that is, all over and above the special ben- 
efits — must be assessed upon the whole community. 

§ 10. Legislative Omnipotence. Aside from these restrictions 
inherent in the very conception of special assessment, and in 
the absence of specific constitutional limitations, the legislative 
power to authorize such impositions is most absolute and far- 
reaching in its scope. Over the municipal corporation the 
legislature is omnipotent. It may, therefore, confer upon the 
municipal authorities the power to inaugurate a system of 
special assessments for particular purposes, which power may 
be limited or unlimited, absolute or only to be exercised upon 
fulfillment of prescribed conditions;^ and the exercise of legis- 
lative discretion is not reviewable by the courts.^ But no 
greater power can be granted than the commonwealth itself 
possesses."* The legislature, then, may sanction an assessment 
to pay a private claim which in law has no validity;^ it may 
authorize an assessment according to the benefits conferred by 
a completed improvement for the purpose of giving a contractor 
an addition to the contract price which the corporation by its 
charter was forbidden to pay.® It may compel the municipal 

165 Pa. St., p. 157. 

2 Broadway Baptist Church vs. McAtee, 8 Bush, 508. 
•'King vs. City of Portland, 2 Ore., 146. 
*2 Dillon, sec. 740, p. 899. 

^ Town of Guilford vs. Supervisors of Chenango County, 13 N. Y., 143; Sinton 
vs. Ashbury, 41 CaL, 525. 

•^Brewster vs. City of Syracuse, 19 N. Y., 116. 



453] SPECIAL ASSESSMENTS. IO3 

authorities to collect the levy before entering upon the con- 
struction of the improvement, or it may allow them to pay for 
the same out of the general fund, and then collect the sum 
from the taxpayers.^ If the cost exceed the estimate, the 
additional amount may be raised by a new assessment.'"^ In 
the matter of re-assessment, the legislature is quite un- 
restrained.^ Where an assessment for a local improvement is 
irregular, the legislature may itself make, instead of authorize, 
a re-assessment ;* or it may create a quasi-corporation, such as 
levee commissioners, for that purpose. The poiver to levy 
special assessments for benefit comes under the taxing power, 
and the exclusive power of taxation rests with the legislature. 
§ II. Extent of Municipal Powers. The question how far 
the municipal authority extends under the statute does not, 
with us, offer many difficulties. In the United States the 
municipality has only those powers granted by its charter 
expressly or by fair implication. No American municipal 
corporation can impose special assessments for benefit, unless 
the authority so to do has been distinctly and clearly con- 
ferred; and when the power is clearly given, then in its exer- 
cise it must be,strictly followed.^ If this power as delegated 
is to be exercised through certain specified officers, no other 
municipal officials can legally make such assessment.*^ In 

1 Matter of Roberts, 81 N. Y., 62. 

2 Hastings vs. Columbus, 42 Ohio St., 585. 

•^ Raymond vs. Cleveland, 42 Ohio St., 522; Howell vs. City of Buffalo, 37 N. 
Y., 267 ; State vs. Township of \Vest Orange, 40 N. J. L., 122; Matter of Dela- 
ware and Hudson Canal Co., 60 Hun., 204. 

* Matter of Van Antwerp, 56 N. Y., 261. But in Mayor, etc., of Baltimore vs. 
Horn, 26 Md., 184, the court declared unconstitutional an act of the legislature 
validating an assessment which had been declared illegal, on the ground that the 
act was an assumption of judicial power virtually reversing the judgment of the 
court. 

^Burroughs, Taxation, sec. 148, p. 471. 

6 Matter of Zborowski, 68 N. Y., 88. 



I04 SPECIAL ASSESSMENTS. [454 

case the expense of the improvement may be defrayed by two 
different means — general taxation or special assessment — the 
decision as to which means shall be resorted to lies in the dis- 
cretion of the municipal authorities. So, too, if the public 
benefit is such as to justify a contribution from the public 
treasury, it is likewise in their discretion to decide whether a 
portion of the expense shall be raised by general taxation, and, 
if any, what portion is so to be raised/ But the amount thus 
paid is to be constantly distinguished from any sum paid by 
the corporation as an assessment for benefits resulting to pub- 
lic property. Where the assessment is laid upon property 
owned by the city, whatever sum is paid by the city is as a 
property-owner, and upon the same principles with reference 
to amount and benefits as any other property-owner.^ 

The power of a municipal corporation to improve the streets 
by means of special assessment for benefits is a continuing 
power and is not extinguished by its initial use.^ In conse- 
sequence, where the improvement consists of distinct parts, 
the assessment for each part may be made separately, and, if 
desirable, at different times.^ On the other hand, the costs of 
different projects, if related in sufficient degree, may be united 
in one assessment.^ In every instance the charter must be 
strictly followed ; the courts will not permit any substantial 
departure from the requirements of the statute.^ 

§ 12. Purposes of Special Assessments. The various objects 
for which special assessments have been authorized give some 
indication to what extent this system has been, and may be, 

1 Matter of Turfler, 44 Barb. 46; Matter of McReady, 90 N. Y., 652. . 

^Matter of Livingston, 121 N. Y., 94; Alexander and W^ilson vs. The Mayor, 
etc., of Baltimore, 5 Gill, 383. 

■^ Matter of Furman Street, 17 Wend., 649 ; Williams vs. The Mayor, etc., of De- 
troit, 2 Mich,, 560; Municipality No. 2 vs. Dunn, 10 La. An., 57. 

* Manice vs. The Mayor, etc., of New York, 8 N. Y., 120. 

5 The People vs. The Village of Yonkers, 39 Barb., 266. 

''Matter of Flatbush Avenue, l Barb., 286, 



455] SPECIAL ASSESSMENTS. IO5 

upheld in law. The greater number of these objects group 
themselves together in what are known as street improve- 
ments. In this group are included the opening of new streets 
and the widening, extending, and straightening of old ones ; also 
grading, leveling, pitching and draining, providing them with 
pavements, guttering and sidewalks, beautifying them with 
shade-trees or parking, sprinkling them by day and lighting 
them by night. The same principle has also been applied to 
the betterment of water-ways so far as concerns the removal 
of obstructions, the construction of embankments and piers.^ 
Cities, moreover, have by this means secured and improved 
public parks and squares.'^ Then there are the various monop- 
olies of service whose cost of construction, when owned by the 
municipality, has often been defrayed in part by assessment 
for benefit upon those owners in front of whose lots the pipes 
or wires have been laid — sewers, water-works, gas-works, 
electric-lighting plants, wire conduits."^ Sanitary improve- 
ments, such as the building of levees and the drainage of 
swamps, have been effected under this power of special assess- 
ment,* with which also the special taxation of a town or county 
in order to pay for court-houses, public buildings, or fencing 
townships, has been erroneously classed. This latter exercise 
of the power is not primarily an assessment in the ratio of in- 
dividual benefits, but rather local taxation of a local authority 
for local purposes. 

Many commonwealths sanction the construction of turn- 

i Buffalo Union Iron Works vs. The City of Buffalo, 13 Abb. Pr. N. S., 141 ; * 
Soens vs. City of Racine, 10 Wis., 271. 

^Bouton vs. City of Brooklyn, 15 Barb., 375. 

^ Allen vs. Drew, 44 Vt., 174; Burroughs, Taxation, sec, 151, p. 498. See 
also an act to enable cities and towns to manufacture and distribute gas and 
electricity, Laws of Massachusetts, i8gi, chap. 370, sec. 6, p. 951. 

*Woodruff vs. Fisher, 17 Barb., 224, Welty devotes two chapters in his work 
)n assessment to this subject — one, chap. 24^ on drainoge assessments, and one, 
chap. 25, on swamp land districts in California. 



I06 SPECIAL ASSESSMENTS. [456 

pikes by assessment of abutting farm lands, but the courts of 
Pennsylvania have refused to uphold impositions of this sort, 
on the ground that agricultural lands cannot possibly reap 
any definable and specific benefit from such undertakings, and 
they confine the system of special assessment for benefit to mu- 
nicipal improvements only.^ Little fault can be found with 
this application of the rule that improvements for the general 
benefit must be paid for by general taxation, but the Pennsyl- 
vania judiciary, in the far-famed Hammett case, have, by a 
similar argument, refused to uphold assessments for repaving. 
In the words of Justice Sharswood : 

" The original paving of a street brings the property bounding 
upon it into the market as building lots.- Before that it was a road, 
not a street. It is therefore a local improvement with benefits 
almost exclusively peculiar to the adjoining properties. Such a case 
is clearly v/ithin the principle of assessing the cost on the lots lying 
upon it. Perhaps no fairer rule can be adopted than the proportion 
of feet front, although there must be some inequahties if the lots 
differ in situation and depth. Appraising their market values and 
fixing the proportion according to these, is a plan open to favoritism 
or corruption and other objections. No system of taxation which 
the wit of man ever devised has been found perfectly equal. But 
when a street is once opened and paved, thus assimilated with the 

rest of the city and made a part of it, all the particular benefits to the 

• 
locality derived from the improvements have been received and en- 
joyed. Repairing streets is as much a part of the ordinary duties 
of the municipality — for the general good — as cleaning, watching, 
and lighting. It would lead to monstrous injustice and inequality 
should such general expenses be provided for by local assessments."'' 

And for like reasons, various city charters have been made 
to read that while the cost of paving may be defrayed by spe- 

MYashington Avenue, 69 Pa. St., 352; Burroughs, Taxation, sec. 151, p. 
498; Reeves vs. Treasurer of Wood County, 8 Ohio St., '}^'^'})\ Fosters. Commis- 
sioners of Wood County, 9 Ohio St., 540. 

2 Hammett vs. Philadelphia, 65 Pa. St., 146, p. 155. 



457] SPECIAL ASSESSMENTS. IO7 

cial assessment, repaying must be done at the general expense. 
Yet such clecisiont and such charter provisions are exceptions 
to the rule. Arguments may easily be found in favor of as- 
sessments for repavement equally as strong as those of Justice 
Sharswood. For example, in an opinion of Judge Lindsay: 

" It is certainly well settled in this state that the cost of the orig- 
inal construction of the streets of a city may be imposed upon the 
owners of real estate alone without violating the constitutional limi- 
tations upon the legislative power of taxation. We can perceive no 
sufficient reason why the cost of the reconstruction of such streets 
may not also be assessed against the owners of the same character 
of property. In proportion as the trade and population of a city 
increase, the value of real estate advances. The owners of such 
estate receive and enjoy very nearly the sole permanent advantages 
accruing to the city from the construction, repairs, and reconstnic- 
tion of the streets upon which their property may be situated. The 
general public certainly receives incidental benefits from such im- 
provements ; but the benefits to the owners of real estate are direct, 
appreciable and permanent. The original improvement enhances 
the value of lots adjacent to the street improved by making it acces- 
sible to the public and attracting^ trade and population. This en- 
hanced value can be preserved in no other way than by keeping the 
street in repair and by its reconstruction when too much worn to be 
longer repaired. Hence, so far as the right to impose this local 
taxation depends upon the enjoyment by the persons taxed of pecu- 
iar local benefits arising therefrom, it seems to us that there is no 
substantial difference between the reconstruction and the original 
pavement of the street."^ 

§ 13. Acqjtiring Jjtrisdiction. In initiating proceedings for 
special assessments for local improvements, all the steps re- 
quired for obtaining jurisdiction must be carefully taken. 
Every condition precedent must be strictly fulfilled. When 
a statute provides for a resolution by the council decreeing an 

1 Broadway Baptist Church vs. McAtee, 8 Bush, 50S, p. 511. For a similar 
criticism of Hammett's case, see Simpson, Ahiiiicipal Assessments, p. 6. 



I08 SPECIAL ASSESSMENTS. [458 

improvement necessary, such declaration is a distinct pre- 
liminary act which is indispensable to give the council juris- 
diction.^ Frequently for the purpose of opening, widening or 
straightening streets, an official map must first be secured, 
showing a plan of the proposed extension, and in such case 
the subsequent proceedings must conform with the plan. 
One very knotty question has arisen in connection with the 
requirement of a preliminary map, which is not yet entirely 
untangled. It is whether, in the estimate of damage, the 
value of buildings erected after the filing of the map, but be- 
fore the actual opening of the street, should be taken into 
account. The early laws of New York provided that no com- 
pensation be given for improvements made, after the filing of 
the map, upon lands to be taken for the proposed street ; and 
this provision was at first sustained by the courts.'"^ But a few 
years later, it was held in the case of Seaman vs. Hicks that 
where, after confirming a permanent plan of contemplated 
streets, the trustees of Brooklyn subsequently laid out and 
opened a narrower street, and assessed the expense thereof 
upon the adjoining property, the trustees had by so doing 
waived the right, if they ever possessed it, to take the lands 
thus assessed for the opening of tlie street according to the 
original plan, without paying for buildings and improvements 
which had afterwards been erected and made upon the lands 
thus assessed.^ And Chancellor Walworth then said, in com- 
menting upon the earlier decision: 

" I think, however, the position can not be maintained that where 
an individual has a single vacant lot in a city or village, which lot is 
of great value for building purposes and worth httle or nothing for 
any other use, the legislature may authorize the corporation to ap- 
propriate such lot prospectively, to be opened and used as a street 

1 Hoyt vs. City of East Saginaw, 19 Mich., 39. 

2 Matter of Furman Street, 17 Wend., 649. ' m 

3 8 Paige, 655. 



459] SPECIAL ASSESSMENTS. lOo 

at its unimproved value, and to be paid for at some future period 
when the corporation shall think proper to order such street to be 
opened ; thereby depriving the owner of the whole beneficial use of 
his lot for an indefinite time, without any equivalent whatever for 
the damage he must sustain in consequence of being deprived of 
the power of building upon or otherwise improving the lot."^ 

Therefore, when the same controversy arose in the Matter of 
Widening Wall Street, the court held that damages for open- 
ing streets are to be assessed on the property as valued at the 
time of the estimate, and not at the time the improvement was 
decided upon or the map filed." To prevent the use of the 
land for an indefinite period, except at the risk of losing all the 
capital permanently invested, deprives the owner of rights of 
property without just compensation. As Judge Mitchell very 
properly says : 

" The public do not bind themselves to adopt an improvement, 
either by passing a resolution to have it done, or by having commis- 
sioners appointed to carry it out ; nor by any other act short of con- 
firmation of the commissioners' report by the supreme court. At 
any time before that confirmation the corporation may discontinue 
the proceeding. How unjust it would be to require every owner to 
refrain from building on his own land, or to conform his new build- 
ing to a plan merely proposed by the corporation, when the proceed- 
ings might be delayed for several years, and when the corporation 
might on its. own will then abandon the improvement, after the new 
building had been made to conform to the proposed plan."" 

The same line of reasoning has been adopted by the Mary- 
land courts,^ but a recent New York decision seems to incline 
to practically the old doctrine as first adopted in that common- 

^ 8 Paige, p. 660. 

2 17 Barb., 617. 

3 Ibid., p. 642. 

* Moale vs. The Mayor, etc.,oi Baltimore, 5 Md., 314. See also Angell on 
Highways, sec. 193, p. 233. 



no SPECIAL ASSESSMENTS. ' [460 

wealth. In this case it is decided that a person is not entitled 
to damages caused by grading a street, to any improvements 
made after a map showing the change of grade had been duly 
filed.^ The judgment is justified by Judge Brady with these 
remarks : 

"There seems to be an imperfection in the law in this respect, 
namely, that by the filing of the map the new grade is established, 
but it is not immediately incumbent upon the city to proceed with 
the alteration. The result is that the owner of the land must wait, 
or having leveled or built up to the grade, may then proceed with 
his building."^ 

This part of the subject is thus evidently in an unsettled 
condition.^ 

The previous consent of a majority of the parties to be af- 
fected by a proposed improvement, may constitute a prelimi- 
nary portion of the proceedings necessary to give jurisdiction. 
The majority demanded may be a simple majority of the par- 
ties affected, it may be the owners of a major portion of the 
front feet of the abutting lands, it may be the owners of the 
greater part of the adjoining property estimated at its assessed 
value, or it maybe the taxpayers who are to contribute the 
major part of the assessment for benefits ; whatever the rule of 
majority, the municipal authorities are to judge in first instance 

^ The People vs. Board of Assessors, 58 How. Pr., 327. Also Matter of One 
Hundred and Twenty-seventh Street, 56 Plow. Pr., 60. 

2 58 How. Pr., p. 330. 

•^ It is very gratifying to me to note that this statement as to the unsettled con- 
dition of the New York law upon this point is no longer true. In Forster vs. 
Scott, the court of appeals (January, 1893), has rendered a decision exactly in 
line with the view which I have indicated in the text. They there declare un- 
constitutional and void that section of the New York City consolidation act by 
which property-owners are denied compensation for buildings upon land taken 
for a street erected after the filing of a map but before the street is actually laid 
out. The same issue is likely to again arise in connection with section 9 of the 
new Massachusetts law, cited on p. 60 of this monograph. 



461] • SPECIAL ASSESSMENTS. HI 

whether the requisite number of names has been presented.^ 
And their decision may be niade final by statute, although or- 
dinarily a motion will be entertained by the courts to set aside 
an assessment for the reason that the petition therefor was not 
signed by a majority of the interested property-owners.""^ But 
the conclusion of the municipal authorities will not be dis- 
turbed merely because one of the opponents of a project " has 
reason to believe" that they were wrong.^ Nor will a petitioner 
be allowed to withdraw his assent after the petition has in any 
way been acted upon.'^ Yet where a remonstrance signed by 
a prescribed number of property-owners ousts the jurisdiction 
of the city to proceed, a subsequent withdrawal of the names 
will not restore jurisdiction."* 

§ 14. Notice and Hearing. As a rule, the various systems 
of special assessment for benefit provide for a notification, at 
some stage of the proceedings, of the parties to be assessed, 
and if the statute prescribes such notice, the notice must be 
given in order to create a valid assessment. The notice need 
not be a personal one, notification by publication being suffi- 
cient.^ Notice of two kinds of work may, if desirable, be 
joined in one.^ When the notice is given is not important, so 
long as it is given before the confirmation of the report of the 
commissioners of estimate. It need not be before the com- 
missioners act; for its only purpose is to allow opportunity 
for objections when the report comes up for confirmation.^ 

iThe People v%. The City of Rochester, 21 Barb., 656. 

2 Matter of Sharp, 56 N. Y., 257 ; Matter of Kiernan, 62 N. Y., 457. 

3 B-etts vs. City of Willianisburgh, 15 Barb., 255. 
*The People vs. Henshaw, 61 Barb., 409. 

^ Desty, Taxation, sec. 183, p. 1 300. 

^Owners of Ground vs. The Mayor, etc., of Albany, 15 Wend., 374; Matter of 
Lowden, 89 N. Y., 548; Chambers vs. Satterlee, 40 Cal., 497 ; Williams vs. The 
Mayor, ^/r., of Detroit, 2 Mich., 560; Matter of Application for Drainage of 
Lands, 35 N. J. L., 497 ; Matter of Union Elevated R. R. Co., 112 N. Y., 61. 

^ Emery vs. San Francisco Gas Co., 28 Cal., 345. 

8 Matter of Common Council of Amsterdam, 126 N. Y., 158; Honore vs. City 
of Chicago, 62 III, 305. 



112 SPECIAL ASSESSMENTS. • [462 

According to the doctrine of the New York courts : 

''The individual has no constitutional right to be heard upon the 
question whether the law, either state or municipal, . . . shall be en- 
acted, but he has a right to be heard as to what proportion of the tax or 
assessment shall be imposed upon him or his property. It is for the 
government to determine for what public purposes a tax shall be im- 
posed, and upon what districts or persons ; but every individual has 
a right to be heard with reference to the basis of his own contribu- 
tion to the public burden ; if based upon his property, what prop- 
erty; and its proportion by value, frontage, benefits received, or 
otherwise, to the other like property included within the assess- 
ment." ' 

In the case of Stuart vs. Palmer, Judge Earl said: 

" I am of the opinion that the constitution sanctions no law im- 
posing such an assessment without notice to, and a hearing, or an 
opportunity of a hearing, by the owners of the property to be assessed. 
It is not enough that the owners may by chance have notice, or that 
they may as a matter of favor have a hearing. The law must require 
notice to them and give them the right to a hearing and an oppor- 
tunity to be heard. . . . The legislature may prescribe the kind 
of notice and the mode in which it shall be given, but can not dis- 
pense with all notice."^ 

Thus strictly have the courts of New York and Maryland 
laid down the limitation. The doctrine of the United States 
supreme court does not seem to go so far. In Davidson vs. 
New Orleans the court declared that whenever the laws of a 
commonwealth "provide for a mode of confirming. or contest- 
ing the charge [which has been imposed as an assessment for 
benefit] in the ordinary courts of justice, with such notice to 
the person or such procedure in regard to the property as is 
appropriate to the nature of the case, the judgment in such 
proceedings can not be said to deprive the owner of his prop- 

1 Matter of Delaware & Hudson Canal Co., 60 Hun., 2:'4, p. 209. 

2 74 N. Y., p. 188. Also Ulman vs. The Mayor, etc., of Baltimore, 72 Md., 587. 



463] SPECIAL ASSESSMENTS. II3 

erty without due process of law."^ They here leave unan- 
swered the question what is appropriate to the nature of the 
case, but in Hagar vs. Reclamation District they go on to say 
that whether notice is at all necessary may depend on the 
character of the tax and the manner in which .its amount is 
determinable.' In that case all they seem to require in satis- 
faction of due process of law is that the party assessed have an 
opportunity to take objections to the validity or amount of the 
assessment when the attempt is made to enforce it. Notwith- 
standing the fact that the point has been raised on more than 
one occasion, we have as yet no decision of a federal court 
which has sought to declare any assessment proceedings to be 
in contravention of the fourteenth amendment where the local 
courts have refused to entertain complaints as to the relative 
amounts of the charges imposed. 

§15. The Subjects of Assessment. After a special assess- 
ment for benefit has been ordered, and after the various prelim- 
inary acts necessary to its validity have been accomplished, 
the question presents itself. What property is to be taxed ? 
According to the legal theory of equivalents, the imposition 
may be charged against such property only as can be benefited 
by the proposed improvement. But the benefits are estimated 
benefits ; they need not be actual so long as there is a possi- 
bility of benefit. "The potentiality of receiving a benefit," is 
the thing to be charged.^ So it is very generally conceded that 
exemption by law from taxation applies only to taxation for gen- 
eral purposes, and does not excuse from the payment of special 
assessments.* Statutes conferring exemptions from taxation 

1 96 U. S., 97, p. 104. 

2 Hagar vs. Reclamation District, No. 108, in U. S , 701; Walston vs. Nevin, 
128 U. S., 578; Spencer vs. Merchant, 125 U. S., 345 ; also Galveston vs. Heard, 
54 Tex., 420. 

3 Wright vs. City of Boston, 63 Mass., 233. 

* Matter of the Mayor, etc., of New York, II Johns., 77 ; Buffalo City Cemetery 
vs. City of Buffalo, 46 N. Y., 506 ; Matter of Second Avenue M. E. Church, 66 
N. Y., 395 ; Matter of St. Joseph's Asylum, 69 N. Y., 353; Matter of Hebrew 
Benevolent Orphan Asylum Society, 70 N. Y., 476 ; Roosevelt Hospital vs. 



114 SPECIAL ASSESSMENTS. [464 

are to be strictly construed.^ While Harvard College secured 
freedom from special assessment by reason of the peculiar 
wording of the charter, the Massachusetts courts have in other 
cases refused to relax the strict rule of interpretation.^ In a 
similar manner, public property may be made subject to as- 
sessment for benefit. " While, then, it may be conceded that 
property belonging to the state is not the subject of taxation, 
in the absence of any exemption by statute, it by no means 
follows that it is not liable to assessment for local improve- 
ments."^ If the property belongs to the public, the people as 
a whole receive the special benefits, and they should pay for 
them just as any individual.* 

§ 16. The Rule of Estimating Benefits. When it has been 
finally decided what property may possibly be benefited by 
the project in hand, it becomes necessary to determine the 
quantum of benefit about to accrue to each property-owner. 
For this purpose, some rule of estimation is required. Ap- 
portionment implies an allotment to each taxpayer of his 
share of the common burden, and this share must not be 
arbitrarily assigned. The rule as generally stated is to con- 
sider the effect of the improvement upon the market value of 
the property.^ It was expressed by Justice Bronson in a very 
early decision as follows: 

Mayor, etc., of New York, 84 N. Y., 108; First M. E. Church vs. City of Atlanta, 
76 Ga,, 181; Canal Trustees vs. City of Chicago, 12 111., 403; City of Paterson 
vs. Society for Establishing Useful Manufactures, 24 N. J, L , 385. 

1 Buffalo City Cemetery Co. vs. City of Buffalo, 46 N. Y., 506. 

2 Harvard College vs. Aldermen of Boston, 104 Mass., 470 ; Boston Seamen's 
Friend Society vs. Boston, 116 Mass., 181. 

^ Hassan vs. City of Rochester, 67 N. Y., 528. 

* Matter of Turfier, 44 Barb., 46; Matter of Livingston, 121 N. Y., 94. Bilt 
McGonigle vs. City of Allegheny places the burden on the abutting owner as 
" the price he pays for the privilege of an open common in his front," 44 Pa. St., 
118. 

^ State vs. District Court of Ramsey County, 33 Minn., 295. 



465] SPECIAL ASSESSMENTS. HC 

" The question, is not what estimate does the owner put upon it, 
but what is the real worth in the judgment of honest, competent and 
disinterested men? ... In a case hke this, the proper mode of 
adjusting the question of damages is to inquire, What is the present 
vahie of the land, and what will it be worth when the contemplated 
work is completed. In deciding these questions, neither the pur- 
pose to which the property is now applied, nor the intention of the 
owner in regard to its future enjoyment, can be matters of much 
importance. In both cases the proper inquiry is. What is the value 
of the property for the most advantageous uses to which it may be 
applied?"^ 

And in a subsequent opinion the same learned judge says 
that it is proper to regard all the circumstances which render 
the proposed improvement more or less beneficial to the 
owner.^ In one instance, the commissioners took into ac- 
count the fact that the opening of the alley would remove an 
extensive barn building and stable which they said was in 
dangerous proximity to the property assessed, and the court 
held that they were justified in so doing.^ On the other hand, 
there are several decisions among the New York reports, 
which hold that the nature of the interest in the land assessed 
should be considered, and that notwithstanding the possession 
of a title in fee simple, the character of the limited use to 
which it is actually applied should be taken into account.* 
This, however, does not seem to be the sound doctrine. 
Where the owner has unrestricted power of alienation, the 
present use and purposes as to future enjoyment ought not to 
be regarded ; were it otherwise, the property-owner, after the 
improvement has been completed, might suddenly change 
his mind, and by turning his land to new uses reap all the 

1 Matter of Furnian Street, 17 Wend., 649, p. 669. 

2 Matter of Degraw Street, 18 Wend., 568. 

3 The People vs. The Mayor, etc., of Syracuse, 63 N. Y,, 291. 
*^Ibid.; Matter of Albany Street, 11 Wend., 149. 



Il6 SPECIAL ASSESSMENTS. [466 

benefit of such improvement at the expense of his neighbors/ 
Whether in calculating the enhancement of the value of the 
owner's interest, a limitation in the title of the estate should 
be taken into account, has not been uniformly decided in dif- 
ferent jurisdictions. So it has been held that an interest in 
land which will be forfeited if used for other than church 
purposes can not be enhanced in value so much as if it were 
held in fee simple.^ But other courts refuse to take notice of 
a defeasible title.^ 

In the absence of mandatory provisions in the statute, the 
commissioners are not confined to any particular mode of es- 
timating the enhancement of value expected to result from 
the proposed improvement. They may adopt that method 
which to them seems most suitable, and in this they will be 
sustained so long as the method adopted is not considered to 
be capricious or arbitrary. As to what is capricious or arbi- 
trary, the courts have differed widely at different times, but 
the variance in judicial opinion must be explained by a vari- 
ance in attending circumstances. If the commissioners decide 
that the several lots are equally benefited and make an assess- 
ment at so much per front foot, there can be no objection; 
such an assessment is not necessarily an erroneous principle if 
in the judgment of the commissioners the owners receive bene- 
fits in such proportion.* The area of adjacent lands may be 
taken as an index to the benefit, and this is the common method 
adopted for the construction of highways, levees and drains, 
^although it has also been applied to street improvements.^ 

1 Matter of William and Anthony Streets, 19 Wend., 678. 

2 Owners of Ground vs. The Mayor, etc., of Albany, 15 Wend., 374. 

3 Zion Church ^s. The Mayor, etc., of Baltimore, 71 Md., 524. 

* Coles vs. Trustees of Williamsburgh, 10 Wend,, 659; Matter of Gardner, 41 
How. Pr., 255 ; O'Reilley vs. City of Kingston, 114 N. Y., 439 ; White vs. The 
People, 94 111., 604 ; City of Covington vs. Boyle, 6 Bush, 204 ; Schenley vs. 
City of Allegheny, 36 Pa. St., 29 ; Norfolk City vs. Ellis, 26 Gratt., 224. 

» Broadway Baptist Church vs. McAtee, 8 Bush, 508; Caldwell vs. Rupert, 10 
Bush, 179; Egyptian Levee Co. vs. Hardin, 27 Mo., 495; B. & M. R. R. Co. 
vs. Lancaster County, 4 Neb., 293. 



467] SPECIAL ASSESSMENTS, ny 

Again, it has been held that commissioners may make their 
estimate in the ratio of the assessed valuation if there is evi- 
dence to warrant the conclusion that property will be bene- 
fited in that ratio.^ To sum up in the words of a southern 
court: 

"The authorities establish the proposition that such assessments 
may be made on the basis of benefits, and further, that the legisla- 
ture is not shut up to any one mode of apportionment to grade and 
pave the streets of a city. The expense may be apportioned among 
those who own the lots adjacent, either by the running foot or front- 
age, the square feet of the area, or upon the ad valorem basis. It is 
the legislative discretion to adopt the one mode or the other."- 

§ 17. Report and Confinuation. The report of the com- 
missioners must show distinctly that the assessment was made 
in proportion to estimated benefits.^ The owner of the prop- 
erty assessed need not be specifically named, provided the lot 
be definitely described ; and reference by lot number is a 
sufficient description.'* No minority report will be recognized. 
There can be but one report, and that the report of the whole or 
majority of the commissioners. A concurrence of a majority 
is all that is required.'' On the death of one commissioner, 
power to act remains in those surviving, unless there is a 
provision at hand for filling the vacancy.^ But a law conferring 
authority to supply by appointment a place vacated by death 
or disability, has been construed to include vacancies by resig- 
nation.'' If, however, two assessors act where only one is 

^ Ap'peal of Piper, 32 Cal. 530. 

2 Daily vs. Swope, 47 Miss., 367, p. 387. 

3- Warren vs. City of Grand Haven, 30 Mich., 24. 

* Matter of John and Cherry Streets, 19 Wend., 659 ; People vs. McGuire, 126 
N. Y., 419; City of Covington vs. Boyle, 6 Bush., 204. 

^MaUer of Broadway Widening, 63 Barb., 572; MaUer of Fourth Avenue, ii 
Abb. Pr., 189. 

^ People vs. The Mayor, etc., of Syracuse, 63 N. Y., 291. 

^ State vs. City of Newark, 27 N. J. L., 185. 



H8 SPECIAL ASSESSMENTS. [468 

required, that will not render the assessment void.^ While 
the commissioners must usually be disinterested as regards 
the improvement proposed, yet being a trustee of lands as- 
sessed does not give such an interest as to debar from act- 
ing;^ nor is it any objection that one of the commissioners is a 
member of the city council when some of the property 
assessed belongs to the city.^ 

When the report is once made up, the commissioners' power 
to review is strictly appellate. They have no right to increase 
any charge for benefit where no objection has been made to 
the assessment previously filed, and alterations must be con- 
fined to those items to which objection has been made/ This 
is because the proceedings in an assessment for benefit are in 
the nature of a judicial proceeding.^ Even though the court 
in reviewing and confirming the report act as quasi-commis- 
sioners, they act also as a court in every respect except per- 
haps in reviewing their own decisions.^ The courts may, at 
any time before confirmation of the report, authorize the 
municipal corporation to discontinue further proceedings in 
the matter.'' So, too, the power of appointment implies power 
of removal, and where a corporation may appoint commis- 
sioners, it may remove them before the completion of the 
proceedings, and appoint others. The report once confirmed, 
however, then the whole assessment is final and conclusive 
upon the municipality. Approval by the court gives vested 
rights which defeat the power of the city authorities to dis- 

1 Matter of Gardner, 41 How. Pr., 255. 

2 People OT., The Mayor, etc., of Syracuse, 63 N. Y., 291. 

3 Matter of Twenty sixth Street, 12 Wend., 203. 
* Matter of HamiUon Avenue, 14 Barb., 405. 

^ City of Chicago vs. Larned, 34 III., 203. 

6 Matter of Canal Street, 11 Wend., 154. 

''The People vs. The Corporation of Brooklyn, i Wend., 318; Matter of Canal 
Street, 11 Wend., 154; Matter of Commissioners of Washington Park, 56 N. Y., 
144; Matter of Military Parade Ground, 60 N. Y., 319. 



469] SPECIAL ASSESSMENTS. ng 

continue the proposed- improvement; nor can the question of 
benefit be again reviewed by any other tribunal.^ Previous to 
the confirmation of the report, all steps are initiator}'; con- 
firmation by a competent body transforms the proceedings 
into an assessment of record. 

§ 18. T/ie Legal Naiiire of the Charge. What now is the 
nature of the charge made against the property- owner for the 
benefit accruing to him from the proposed improvement? Is 
it a personal liability to be collected as other judgments are 
collected ? Is it a lien upon the property only? Or is it, at the 
option of the municipal authorities, the one or the other, or 
both ? As a matter of fact, we have seen that the legal nature 
of the assessment varies with the different statutes under which 
it is prosecuted. As to what sort of a charge such assessment 
ought to be, we have numerous expressions of the courts which, 
as a whole, are not altogether harmonious. It is often argued 
that the jegal theory of equivalents necessarily confines the as- 
sessment to a lien upon the property benefited. Thus one 
case holds : 

" A local assesment can only be levied on land ; it can not, as a 
tax can, be made a personal liability of the taxpayer ; it is an as- 
sessment on the thing supposed to be benefited."' 

And again, in another case : 

" The reasonableness of this restriction will appear when we reflect 
that there is no call for a general execution until the property charged 
is exhausted. If that is all sold to pay the assessment, leaving a 
balance to be collected otherwise, -we should have the legal anomaly 
— the monstrous injustice — of not only absorbing the property sup- 
posed to be benefited and rendered more valuable by the improve- 

1 Stafford vs. The Mayor, etc., of Albany, 6 Johns, l ; Ibid., 7 Johns, 541 ; Mat- 
ter of Third Street, 6 Cowen, 571 ; Hawkins vs. Trustees of Rochester, i Wend. 
53 ; Hamersley vs. The Mayor, etc., of New York, 56 N. Y., 533 ; Commonwealth 
vs. Woods, 44 Pa. St., 113. 

2 Macon vs. Patty, 57 Miss., 378, p. 386, 



120 SPECIAL ASSESSMENTS. [4-0 

inent, but also of entailing upon the owner the loss of his other pro- 
perty."^ 

All this sounds plausible enough, but really seems to have 
arisen from a confusion of two separate operations, namely, 
the assessment for benefit and the remedy for enforcing its 
payment. They are entirely distinct proceedings, and as a 
rule are conducted by different officials. Justice Sawyer, in 
his dissenting opinion in Taylor vs. Palmer, has stated this 
most aptly : 

"As a matter of convenience, and in a general sense, we speak of 
the lands benefited. But, strictly speaking, there is no such thing 
as benefiting the lands. Lands are not objects that can receive ben- 
efits. They are but insensate clods, to which it is not a matter of the 
slightest consequence whether they are what we call improved or 
enhanced in value, or not. The owner may be benefited by render- 
ing the lands more accessible or useful to him, more subservient to his 
enjoyment and more valuable. The benefit accrues to the owner 
alone, and the pubhc charge, by means of which the special assess- 
ment accrues, necessarily and properly falls upon him alone. The 
amount of the debt when ascertained is due from him, and so far as 
the duty to pay is concerned, the property through which the bene- 
fit accrues is only resorted to for the purpose of ascertaining each 
owner's proper share. When once ascertained, there is no further 
necessary connection between the debt— the tax or assessment — and 
the specific piece of property in respect of which each item of the 
tax was imposed upon the owner,"'^ 

In the absence of statutory provision the assessment is 
nothing more than a personal charge. It is not a lien upon 
the land unless made so by special legislative authority,^ and 
it is at the discretion of the legislature to make it a lien or a 

' Neenan vs. Smith, 50 Mo., 525, p. 529; see also Taylor vs. Palmer, 31 Cal;, 
240. Burroughs seems to incline to this view in his work on taxation. 
2 3 1 Cal,, p. 669, and cases there cited, 
^ 2 Dillon, sec. 821, p. looo. 



^yil SPECIAL ASSESSMENTS. 121 

personal liabilit}^ or both.^ Upon the point whether a statute 
which declares an assessment to be a lien, at the same time 
takes away, by implication its character as a personal liability, 
the decisions cited seem to conflict. The legal nature of as- 
sessment liens must be sought in the charters of cities and 
the statutes creating them. Like the liens for general taxation, 
they take precedence of other liens or incumbrances.'^' While 
distinctions are recognized between tax liens and assessment 
liens, yet the relation between the two, and which should have 
priority over the other, have not been generally worked out.'* 
§ 19. Collection Proceedings. A special assessment, then, 
" is enforced by distress and sale of chattels of the owner, if 
sufficient can be found, and if not, by sale of the land for a 
term of years or in fee; by personal action of debt or assump- 
sit, or action on the case, against the owner ; or by action to 
enforce the lien alone, or an action to foreclose and sell as if 
the charge were a mortgage executed by the owner with judg- 
ment and execution for balance in case of deficiency." * The 
w^arrant issued for the collection of a special assessment should 
contain all the facts necessary to show that the person upon 
whose goods it is levied, is liable to pay the sum claimed from 
him. To this end, it should state when the assessment was 
confirmed by the proper authority; the names of the persons 
assessed, both owners and occupiers, who have neglected to 
make payment ; the premises assessed, by some brief but in- 
telligible description; and the amount of the assessment^ But 
no warrant can be legally issued to collect an assessment for 

1 Emery vs. Bradford, 29 Cal., 75 : Walsh vs. Mathews, 29 Cal., 123; The 
Mayor of New York vs. Colgate, 12 N. Y., 140; Davidson vs. New Orleans, 96 

U. s., 97. 

2 Desty, Taxation, vol. ii, sec. 189, p. 1358. 

3 Sharp vs. Speir, 4 Hill, 76; Welty, Assessments, sec. 324, p. 481. 
♦Taylor vs. Palmer, 31 Cal., p. 687. 

» Gilbert vs. Havemeyer, 2 Sanf. Supr. Ct., 506. 



122 SPECIAL ASSESSMENTS. [472 

benefit for work never performed.^ While the city may trans- 
fer to the contractor for pubHc work involving assessment the 
power to collect the assessment, yet privity of contract exists 
between him and the municipal authorities only, and not be- 
tween him and the persons assessed.^ The liability of the 
property-owner to the contractor is only as to an "agent of the 
public treasury. So where the city has the power, but neglects 
or delays to collect the sum due a contractor, it may be com- 
pelled by mandmims to levy and collect the assessment, or 
the contractor may sue directly upon his contract. The same 
is true when, after an assessment has been annulled, the city 
takes no steps for making a new one. ^ 

§ 20. Kennedies of the Taxpayer. The law does not leave 
the taxpayer to the unrestricted mercy of the commissioners 
of estimate and assessment. It provides remedial procedure 
by which any person aggrieved by the assessment as made, 
may contest its legality or justice before the courts. Some- 
times the legislature provides a special statutory remedy, such 
as a petition for the vacation of the assessment, but where 
such is not the case a writ oi cettiorari will issue to review the 
judicial acts of the municipal corporation.* The courts are very 
reluctant to grant equitable relief in cases of special assessment 
for benefit, but have done so where it has been clearly shown 
that no adequate remedy existed at common law. In New York 
proceedings instituted to vacate an assessment for fraud are 
applicable only to the lands described in the petition; the 
vacation of the assessment as to those lands does not operate 
to render the whole assessment invalid, and the particular 
charge complained of may be simply reduced by the court to 

1 Dorathy vs. City of Chicago, 53 111., 79. 

2 Litchfield vs. Vernon, 41 N, Y., 123; The People vs. Lawrence, 41 N. Y., 
137 ; Emery vs. Bradford, 29 Cal,, 75. 

3 Reilly vs. City of Albany, 112 N. Y., 30; State vs. City of Milwaukee, 25 
Wis., 122. 

* The People vs. The Mayor, etc., of New York, 5 Barb., 43. 



473] SPECIAL ASSESSMENTS, 1 23 

its proper proportions.' The presumption is always in favor 
of the soundness of the report, and the court will not interfere 
unless there be a plain and decided preponderance of evidence 
against the judgment of the commissioners.^ Questions of the 
policy or expediency, the necessity or propriety of the im- 
provement in hand, rest for decision with the legislative and 
not with the judicial department of government.'^ Objections on 
this score will not be received. But the court will interfere if 
it is plainly shown that no benefit from the projected improve- 
ment can possibly be derived, or where the estimate is notori- 
ously extravagant.* 

In every instance, the party objecting must be interested in 
the particular item which he claims is irregular; he can not 
avail himself of any irregularity in assessing property in which 
he has no immediate interest.^ Any owner whose property 
may be taken in default of payment, may be a party aggrieved, 
and therefore a person who has purchased his land after the 
work and before t4ie assessment, may properly petition for a 
vacation of the latter, although he purchased the land subject 
to the impending assessment, which formed a material part of 
the consideration furnished by him.^ The doctrine of equitable 
estoppel has been invoked to prevent a party, otherwise ag- 
grieved, from objecting to an assessment which he has fur- 

1 Matter of Delancey, 52 N. Y., 80; Matter of Feust, 121 N. Y., 299. 

- Matter of Furman Street, 17 Wend., 649 ; Matter of William and Anthony 
Streets, 19 Wend., 678; Allen vs. Drew, 44 Vt., 174. 

3 Matter of Albany Street, ii Wend., 149; Matter of Furman Street, 17 Wend., 
649; Matter of William and Anthony Streets, 19 Wend., 678; Matter of Commis- 
sioners of Central Park, 63 Barb., 282; State cV^. District Court of Ramsey County, 
T^T^ Minn., 295 ; The Tide Water Company vs. Coster, 18 N. J. Eq., 518 ; Scovill 
vs. City of Cleveland, 1 Ohio St., 126; Matter of Dorrance Street, 4 R. I., 230. 

*The People vs. The City of Brooklyn, 23 Barb., 166; Alexander and Wilson 
vs. The Mayor, etc., of Baltimore, 5 Gill., 383. 

^ Coles vs. Trustees of Williamsburgh, 10 Wend., 659; Matter of Thirty-ninth 
Street, i Hill, 191. 

•^ Matter of Gantz, 85 N. Y., 536; Matter of Pennie, 108 N. Y., 364. 



124 SPECIAL ASSESSMENTS. [4-4 

thered. Where a person accepts a benefit under an assess- 
ment, he will not be allowed to deny its. validity. So a prop- 
erty-owner who stands by and sees an improvement made 
without offering any protest against it, has been estopped from 
refusing to pay his assessment after the work was done.^ 
Where the owner of an abutting lot assures a contractor doing 
street improvement work that if he would do the work he 
would be paid, such owner cannot afterwards, when sued for 
his share of the cost, show that the petition presented for in- 
augurating the improvement was defective.^ If a remedy by 
appeal is provided by statute, failure to make use of such 
remedy within the time prescribed, will be considered a waiver 
of all objections;^ Appearance before a tribunal acting in the 
matter cures all irregularity as to notice. These defects may 
be cured or waived: what is absolutely void can not be made 
valid except by subsequent legislative action, and then, only 
in case the constitution does not prohibit retrospective laws.* 
§ 21. The Trend of Legal Interpretation. When we come 
to review the body of judicial decisions, bearing upon the 
subject of special assessment for benefit, and seek to discover 
what attitude, favorable or unfavorable, the courts have taken 
in dealing with the questions at issue, we find that as a whole 
the legal profession has been inclined to assist in upholding 
and extending the system. Not that this system of taxation 
has been entirely without opponents upon the bench. On the 
contrary, several judges of high authority have not hesitated 
to denounce unreservedly the principles upon which it is 
based. Some of these opinions have been extensively quoted, 
and deserve still further quotation. For example, Chief Jus- 
tice Church, of the New York court of appeals, criticizes the 
system thus: 

^ City of Lafayette vs. Fowler, 34 Ind., 140. 
'■^ Welty, Assessments, sec. 318, p. 473, 
3 Chambers vs. Satterlee, 40 Cal., 497. 
♦ Burroughs, Taxation, sec. 149, p. 483. 



475] SPECIAL ASSESSMENTS. 1 25 

"The few are powerless against the legislative encroachments of 
the many. The * constituents ' under this system are attacked in detail, 
ft few only selected at a time, and they have no power to enforce ac- 
countability or to punish for a violation of duty on the part of the 
representative. The majority are never backward in consenting to, 
and even demanding, improvements which they may erjjoy without 
expense to themselves. The inevitable consequence is, to induce 
improvements in advance of public necessity, to cause extravagant 
expenditures, fraudulent practices and luinous taxation. The sys- 
tem operates unequally and unjustly, and leads to oppression and 
confiscation. It is difficult to discover in it a single redeeming 

feature which ought to commend it to public favor Among 

the manifold evils complained of in municipal administration, 
there is no one, in my judgment, calling more loudly for reform than 
this arbitrary system of local assessments."^ 

But the number of judges who have commended the prin- 
ciple of special assessment for benefit far exceeds that of those 
who have denounced it. Says Chief Justice Crozier, of Kan- 
sas, ** There is a justice in this arrangement which commends 
itself to the approbation of any right-thinking man, but the 
injustice of assessing property all over a city for the improve- 
ment of a single street must be apparent at a glance.'"'^ Judge 
Nevius could see "nothing unfair or unequal, retrospective or 
unconstitutional " in a law of this kind,^ and in the case of 
Municipality vs. White, Chief Justice Slidell, of Mississippi, 
remarks in his dissenting opinion : 

"T. concede that the system of local assessment is liable to abuse, 
for which reason courts should scrutinize its apphcation with care, 
and also see that an equitable share cf the burden should be borne 

^ Guest z^j. The City of Brooklyn, 69 N. Y., 506, p. 517 ; see also opinions by At- 
water, J., in Stinson vs. Smith, 8 Minn., 366; by Paine, J-, in Weeks vs. City of 
Milwaukee, 10 Wis., 242; by Freeman, J., in Taylor vs. Chandler, 9 Heisk , 
349- 

2 Hines vs. Leavenworth, 3 Kan., 186, p. 202. 

8 State vs. Dean, 23 N. J. L., 335.' 



126 SPECIAL ASSESSMENTS. [476 

by the public. But it will be readily foreseen that if the whole 
charge of local improvements is to be borne by the city treasury, 
grievous abuses might be practiced upon the inhabitants generally, 
to subserve the local interests of designing men holding property in 
a particular neighborhood."^ 

Nor has the good will of the judiciary been shown in words 
of approval only. A rather faticiful line of distinction has been 
drawn between the use of the terms " taxation" and " assess- 
ment" solely for the purpose of establishing the validity of 
laws for special assessment. When the constitution demands 
equal and uniform taxation according to a just property valu- 
ation, the imposition for benefit from local improvements is 
not a tax within the meaning of such provision. If, however, 
the legislative exercise of the power of special assessment be 
attacked, then it is sufficiently in the nature of a tax to come 
under the taxing power. To escape statutory exemptions of 
charitable institutions from the burdens of taxation, a special 
assessment is not a tax; but in the levy and collection a special 
assessment is so far a tax as to come within the essential limi- 
tations as to apportionment and public purpose. It is held 
now to be a tax, now not to be a tax, just as constitutional 
limitations further or restrict its application. The trend of 
legal interpretation has been, and still is, favorable to the ex- 
tension of the system of special assessment for benefit.^ 

^9 La. An., p. 454; for further commendation see Edgerton vs. The Mayor, 
etc., of Green Cove Springs, 19 Fla,, 140; Smith vs. The Corporation of Aber- 
deen, 25 Miss., 458; Schenley vs. City of Allegheny, 25 Pa. St., 128: Matter of 
Dorrance Street, 4 R. I., 230. 

2 Instance the recent case of The Mayor, etc., of Birmingham vs. Klein, 89 
Ala., 461. 



CHAPTER V. 

THE THEORY OF SPECIAL ASSESSMENTS. 

§ I. TJie Place of Special Assessments in Finance. In order 
to understand the nature of special assessments, the first 
requisite is a clear comprehension of their relative place among 
the various impositions levied by the modern state. In 
the domain of public finance, classification is by no means an 
end to be sought in itself, but it is, nevertheless, a most help- 
ful method for arriving at fundamental distinctions. It brings 
out contrasts and likenesses, and thus assists in fixing the salient 
features of the topic under discussion.* So without pretending 
to exhaust the details of the subject, we shall find a tentative 
classification of no little service in our study. 

In demanding compulsory contributions from the subjects, 
the modern state may employ any one of three constitutional 
powers usually vested in the government. It may, in pursu- 
ance of its right of eminent domain, require the use of any 
particular piece of property in the hands of -persons subject 
to its jurisdiction. Under this head we must place cases of 
confiscation and expropriation — now rarely items of net rev- 
enue, owing to constitutional limitations enjoining compensa- 
tion by the government. Secondly, we have the police power 
of the state — an indefinite power, yet capable of enforcing con- 
tributions from the individual. The chief financial manifesta- 
tions of this power are seen in fines, forfeitures and penalties of 
various kinds. Finally, we have the main reliance of the modern 
state in matters of public revenue — the taxing power. The 
latter demands of the individual only his share of a public 

iBastable, Public Finance, y^. 145; Seligman, " The Classification of Public 
Revenues," Quarterly Journal of Economics, April, 1893. 

477] 127 



128 SPECIAL ASSESSMENTS. [478 

burden. Those impositions comprised under the right of 
eminent domain constitute so much in addition to his share; 
those comprised under the poHce power are looked upon as 
penalties for defaults. The contributions included within the 
taxing power require to be still further. distinguished. 

Of these — the contributions included within the taxing power 
— a threefold division may be made, according as we view them 
from the standpoint of the special advantages accruing from 
their application. At that end of the scale which represents 
the extreme of specific individual benefit, distinct, traceable, 
and measurable, we have those impositions treated of in this 
work under the name of special assessments. At that end of 
the scale which represents the extreme of general benefit, in- 
distinguishable so far as the individual is concerned and 
merged in the blessings of government common to all, we 
must place those contributions known as taxes. The only- 
justifiable foundation for a system of special assessments lies 
in the special benefits conferred; the only justifiable foundation 
for a system of general taxation lies in- the faculty or ability of 
the subject to pay. Midway between these two classes of im- 
positions falls the third class of fees and tolls. Here we have 
contributions levied on the ground of general benefit, but im- 
posed in rough agreement with the special benefits accruing. 
Fees and tolls approach on the one side the limits of special 
assessments; on the other, they trench upon the field of taxes 
proper, into which they may easily be converted. Nowhere is 
the line of demarcation very sharply drawn, although, for pur- 
poses of scientific classification, this threefold division is suffi- 
ciently distinct.^ 

' Neumann has adopted a threefold classification of this kind, Die Steuer, p. 
325 et seq. ; Von Reitzenstein, too, in his Das kovunutiale Finanzwesen, 3 Schon- 
berg, p. 612, speaks of a localized class of fees and tolls corresponding to special 
assessments. Von Stein, i Lehrbuch, 5th ed., p. 58, distinguishes between im- 
positions based upon general and upon special benefits in questions of local finance, 
but carries the analysis no further. Cohn gives merely a passing mention of such 
impositions in his Finanzwissenschaft, p. 244. 



479] SPECIAL ASSESSMENTS. 1 29 

§2. Special Assessments Compared zvitJi General Taxes. 
There are some analogies as well as several marked differ- 
ences to be noted between special assessments and general 
taxes proper. In one sense of the word special assessments 
are taxes, that is, in the sense that they are levied for a public 
purpose under the taxing power of the state. They also re- 
semble taxes in that both are imposed according to some rule 
of apportionment, and may be finally collected by compulsory 
process. From this point on the analogy fails. The benefits 
resulting from special assessments are specific and measurable; 
those resulting from taxation are general and incapable of pre- 
cise measurement according to the contribution of the individ- 
ual taxpayer. In the case of special assessment, the govern- 
ment always performs some positive service, the cost of which 
it seeks to recoup from the persons benefited. In the case of 
taxation, the party taxed receives the benefit of no greater 
governmental service than his fellow-citizens, and the question 
of the cost of his share of the particular service enters as little 
into the 'determination of his tax as does the benefit which he 
may be supposed to derive. Taxation is resorted to in order 
to defray the running expenses of government, and to effect in 
time the amortization of the public debt. The object of spe- 
cial assessments is to provide for the capital account — to in- 
crease, as it were, the permanent plant of the community. For 
taxation the state takes as its test of ability to pay the various 
criterions of property, income, expenditure, et cetera. Special 
assessments are necessarily apportioned in proportion to the 
benefits accruing to the owners of real property. The useful- 
ness of a system of special assessment is confined largely to 
the field of local finance ; taxation finds a scope of action 
throughout the whole realm of public revenue. 

§ 3. Special Assessments Compared with Special Taxes. 
What, now, is the precise distinction between a special tax 
and a special assessment? It may be urged that numerous 
taxes, commonly excluded from the category of special assess- 



1 30 SPECIAL ASSESSMENTS. [480 

raents, are imposed with special reference to the benefits sup- 
posed to flow from their expenditure. These special taxes are 
raised by separate levies, and the proceeds applied to separate 
funds. They are by no means unknown in municipal finance. 
Various American municipalities levy special lighting rates, 
special road rates, special police rates. They re-appear as we 
have seen in the English local rates — the poor rate and the 
rates based thereon. The same principle is at the foundation 
of corresponding taxes in this country — the county road tax, 
the county poor tax, and others. The revenues derived from 
all these impositions are expended upon objects w^hich are cal- 
culated to be particularly advantageous to the contributors of the 
tax. Yet there is here this vital difference which marks them 
off from special assessments. The question of benefit is-juris- 
dictional only; it is regarded in fixing upon the district of tax- 
ation or the persons or property subject to taxation, and no 
further. As between the taxpayers within the district, the 
special tax is levied not according to individual benefits, but 
according to evidences of ability to pay. The rich are listed 
to the poor rate and the blind are taxed for the lighting fijnd. 
Where the imposition is levied according to general ability to 
pay, it constitutes general taxation: Where it thus levied, but 
upon a district determined with reference to benefits, it consti- 
tutes special taxation. Only where it is levied according to 
the individual benefits accruing to the owners of real property, 
does it become a special assessment. 

§ 4. Special Assessments Compared with Fees. We may also 
profitably compare special assessments with fees and tolls. 
The points of likeness are these. First, they are both im- 
posed under the taxing power of the state. Secondly, pur- 
suant to the essential nature of the taxing power, both, in 
order to be constitutionally levied, must include primary 
elements of public interest. Thirdly, they are both regarded 
as payments in compensation for some particular service of 
the government, the cost of which they are intended to cover 
in whole or in part. 



4 8 I ] SFE CIAL A SSESSMEXTS. 1 3 i 

On the other hand, special aj^sessments are applied only to 
local purposes, while the adaptability of fees and tolls is not 
restricted to any particular purpose, general or local. Special 
assessments are apportioned within a territorial district ; fees 
and tolls are collected only as the occasion therefor arises. 
Special assessments, being so apportioned, are levied upon in- 
dividuals only as members of a class ; fees and tolls are de- 
manded of the individual as such. Special assessments are 
collected once and for all, or, at the most, by installments bear- 
ing interest. Liability to the payment of fees and tolls arises 
with each recurring instance of the special governmental ser- 
vice. The benefits for which special assessments are asked are 
derived through the medium of real property; the benefits at 
the basis of fees and tolls may be either real or personal, and 
are usually the latter. Neumann has called attention to the 
resemblance between special assessments and direct taxes 
existing in the permanent character of the objects or transac- 
tions upon which they are apportioned, and the resemblance 
between fees and tolls and indirect taxes existing in the tempo- 
rary and transient character of the transactions upon which 
they are apportioned.^ These resemblances which Neumann 
tries to draw are in fact more apparent than real, more confus- 
ing than helpful. The distinction indicated is not one between 
special assessments and all fees ; it is rather one between a 
certain class of fees on the one side, and another class of fees 
and special assessments on the other side. To be more ex- 
plicit, if the fee is demanded for some governmental service 
which is not indispensable, then the individual by doing with- 
out the service may altogether escape the payment, nor need 
any other person make the payment in his stead. But special 
assessments are apportioned upon the owners of particular 
pieces of real property ; like those fees demanded for indispens- 
able governmental services, if not paid by one person, they 

^ Die Sieuer, pp. 326 and 327. 



132 SPECIAL ASSESSMENTS. [482 

will be paid by another. In both instances the principle seems 
to be, no special benefit without compensation — the charges 
are in essence equally compulsory, inasmuch as every one who 
derives a benefit from the service may be forced to pay his 
share of the expense. Fees and tolls require a permanent 
collection machinery in order to gather the resulting rev- 
enue into the public treasury ; while special assessments, 
being in a sense extraordinary revenue, may be appor- 
tioned hy a temporary board' of assessors, and collected 
through the existing ordinary administrative channels. The 
former are usually demanded at a time concurrent with the 
rendering of the special benefit; the latter most frequently be- 
fore, though sometimes after, the construction of the improve- 
ment in hand. Finally, fees and tolls, by being adjusted so as 
to bring in more than the cost of the particular service, may 
be easily and conveniently converted as to the excess into 
indirect taxes. Special assessments, however, are justifiable 
only so far as they are levied to cover so much of the cost as 
results in specific advantages to the property- owner benefited 
in proportion to these advantages. They do not afford, even 
an approximately just basis upon which such taxation might 
be founded. 

§ 5. Incidence as between Oivner and Occupier, Qne of 
the nice questions to be determined in the discussion 
of every tax is that of its shifting and incidence. In like 
manner, we may inquire whether the burden of a special 
assessment can be thrown off upon others by the parties who 
originally pay it, and, if so, upon whom it ultimately comes to 
rest. For the purposes of this inquiry we have to distinguish 
between two sets of persons, who may be subject to the in- 
fluence of such special assessment. First, between the owner 
of the property assessed and the occupier for the time being, 
provided the latter is distinct from the former. Second, be- 
tween the owner at the time of the .levy and a subsequent 
purchaser. These are the only two cases that need concern 



483] SPECIAL ASSESSMEN7'S. 1 33 

us; for it is evident at the outset that wherever the owner is 
himself the occupier, and so long as he refrains from disposing 
of his propjerty on the market, no opportunity is afforded him 
to shift the burden to other shoulders than his own. 

The question of incidence as between owner and occupier, 
might appear at first glance as simple in the extreme. It 
might be argued, for example, that special assessments are 
imposed only as the equivalent of some distinct and measurable 
benefit, accruing to the prcpert)'-owner by reason of the 
improvement. Furthermore, that no benefit could be said to 
be distinct and measurable, unless it resulted in an increased 
rental value of the property. If such were true, then the 
burden of the special assessment would be immediately trans- 
ferred to the occupier, the real recipient of the benefit. This 
line of argument, as has been intimated, is plausible only at 
^the first glance; a closer analysis will show that the problem 
is much more complicated. 

We must remember that the benefit for which the charge in 
question is imposed, operates only through real property. Its 
amount is in no way conditioned by the temporary use to 
which that property is devoted by its present owner. Now 
the rental value of such property is determined by the relation 
existing between the supply and the demand. Here the 
supply is absolutely limited; the demand alone is elastic. It 
is, then, through some influence upon the demand that the 
charge must act in order to affect the rental value. Let us 
approach the problem from this point of view^ There are four 
possible ways in which the benefits resulting from the im- 
provement in hand may influence the demand of those 
desiring to occupy such premises. First, it may not increase 
the demand at all. Second, it may increase the demand in 
the exact ratio of the burden. Third, it may increase the 
demand to some extent, but not sufficiently to absorb the 
entire burden imposed. Fourth, it may increase the demand 
in a greater ratio than the burden. 



134 SPECIAL ASSESSMENTS, [484 

First. The improvement may not affect the demand at all. 
This supposition is quite possible where, in a stationary or 
declining neighborhood, the resulting benefits serve merely to 
retain the present occupier as tenant, or to counteract, in more 
or less degree, the inevitable fall in rental value. Here the 
owner can not raise his rent. If he should attempt to do so, 
the occupier would relinquish his lease and remove to other 
quarters. The owner must himself bear the burden of the 
assessment. To him, in reality, comes the benefit of the im- 
provement; not a positive enhancement of the value of his 
property, but rather a negative benefit, one which stays the 
present decline or, at all events, prevents so great a decline as 
would otherwise have taken place. 

Second. The improvement may increase the demand in the 
precise ratio of the burden. Rather than release his claim to 
the possession of the property, the occupier is willing to in- 
demnify the owner to the extent of the imposition, but no 
further. The improvement has made the premises worth 
exactly so much more to the occupier than they formerly 
were, so that the entire benefit assessed may be traced to him. 
The rent will rise in a ratio commensurate with the burden in- 
volved, and the owner will be able to shift the entire imposition. 

Third. The demand may be increased, but in a ratio not so 
great as that just assumed. Concurrently the rental value will 
be raised, though how much it will be raised will depend upon 
the elasticity of the demand. The lower limit will be the 
former rental value, the upper limit that value plus a sum 
representing the burden involved. Between these limits the 
fixing of the exact rental value will have free play. 

Fourth. The demand may be increased in a greater ratio 
than the burden. This supposition would be untenable if in 
all cases special assessments were levied up to the full extent 
of the accruing benefits. It may, however, occur, and often 
does occur, where only a designated portion of the expenses 
are to be imposed in proportion to the benefits, or where the 



485] SPECIAL ASSESSMENTS. 1 35 

benefits exceed tlie total expenses incurred. Here the occu- 
pier must either give an addition to his former rent in greater 
ratio than the burden of the special assessment, or he must 
deliver over the possession to some one who is offering to do 
so. The owner secures from his tenant more than he has paid 
out, and is by so much the gainer. The amount shifted over 
to the occupier is greater than the burden in the first in- 
stance imposed. 

We have spoken in the preceding paragraphs of the hn'den 
involved by the special assessment. This burden can never be 
the amount of the imposition. The latter is a sum paid to the 
capital account, and the entire capital cannot well be shifted 
upon the tenant unless so stipulated in the lease. What is 
thus transferred in every instance is the market value of that 
capital calculated at the current rate of interest. The special 
assessment, then, must be looked upon as a permanent invest- 
ment of capital, which may, according to circumstances, return 
the current rate of interest, or somethi'ng less or greater than 
that rate. 

§ 6. Jncidcnce as bctzveen Oiinier and Subsequent PurcJiaser. 
Suppose now that the original owner who has paid the special 
assessment decides to dispose of his property. Will he be 
able to recover in the selling price the amount collected 
from him for the improvement, or will he be able to recover 
any indemnity at all ? The intimate relation existing between 
the rental value of the land and the selling price immediately 
suggests four cases corresponding to those just considered. 
The selling value of the property is usually a capitalization of 
the rental value, and consequently would vary with almost the 
exact movements of the latter. But the burden that may be 
shifted must here be calculated upon a different basis. The 
special assessment is a single and extraordinary, although ex- 
clusive, payment upon landed property. Unlike the perma- 
nent and exclusive land tax, it can never be capitalized by the 
original contributor to the exemption of the subsequent pur- 



1 36 SPECIAL ASSESSMENTS. [486 

chaser. No subsequent payments are to be made.^ We have, 
then, something that approximates the very reverse of the so- 
called capitalization theory of incidence.^ The burden for the 
occupier is the interest charge only. The burden for the sub- 
sequent purchaser is the whole special assessment. As between 
the owner and subsequent purchaser, the special assessment 
as a whole will be shifted, according to the influence of the im- 
provement upon the demand, from the former to the latter, to 
the extent of the entire imposition, to a lesser extent or to a 
greater extent, or not at all. 

There is one disturbing factor yet to be noticed. The 
special assessment may not be payable in a lump sum, but may 
be spread over a considerable period of time by means of in- 
stallments. The manner of payment, however, so long as it is 
charged upon the owner, cannot affect the incidence as be- 
tween owner and occupier. It is the improvement which influ- 
ences the demand for the premises, and through the demand, 
the rental value. In respect to the subsequent purchaser, 
another element is introduced. These installments are liens 
upon the land, and usually run with the land. Future pay- 
ments are collectible from the owner, whoever he may be, at 
the time when due. They might have a tendency to induce 
the , original owner to bear the burden of those payments 
already made, in consideration that the subsequent purchaser 
bear those not yet due. Yet this will scarcely happen under 
the systems of special assessment usually employed. The in- 
stallments as a rule bear interest, and are regarded merely as 
an accommodation to the contributor. The liens may be 
extinguished by immediate payment, as in the nature of a 
mortgage redeemable at once. In adjusting the selling price 
of the property, the present value of the installments yet 

^ An exception will be noted in a moment. 

2 Seligman, Incidence of Taxation, p. 52; also Bastable, Fitblic Finance, p. 
393- 



487] SPECIAL ASSESSMENTS. 1 37 

to be paid is simply deducted from the market price. It is, 
therefore, quite evident that the incidence of special assess- 
ments, as determined by the other factors, is not appreciably 
disturbed by the manner of payment. The original contribu- 
tor must, in every instance, bear the burden during the period 
between the time of payment and the time when the lease of 
the occupier expires, or when he effects a sale of the premises 
on the market. 

§7. Double Taxation. A discussion of the incidence of 
special assessments would be incomplete without reference to 
the objection, sometimes urged, of double taxation. There 
are, of course, no grounds for double taxation in the sense of 
taxation by more than one overlapping jurisdiction, since a 
special jurisdiction is created for every levy of the imposition. 
What has been maintained on this point is that the contributor 
is charged for the same benefit by two different processes.^ The 
line of reasoning proceeds that he is required to pay directly by 
way of special assessment for the benefit received, and then 
again in an increased assessment to the general property tax. 
That this objection is at best specious, is the most its promo- 
ters could urge. If the capital taken for the street improve- 
ment were invested in a private improvement to the premises, 
and thus secured an equal rise in rental value, the owner would 
still be paying directly for the benefit, besides being liable to a 
greater share of the general taxation. He is not really 
charged twice for the same benefit. The only reason that his 
general rate is increased is that, on account of the improve- 
ment, his ability to pay has been enhanced. Again the same 
assertion might as truthfully be made of almost every other tax. 
The income rated this year, if saved and invested, is chargeable 
again next year in respect to its increase. The objection to 
special assessments on the plea of double taxation, has no 
foundation whatever in fact. 

§8. The Justice of Special Assessments. How does the the- 

1 The Duke of Argyll, " The Betterment Tax," 57 Contemporary Review, p. 912. 



1^8 SPECIAL ASSESSMENTS. [488 

ory of special assessment for benefit stand when tested by the 
rules of universality, equality and uniformity, as generally 
applied to matters of taxation? The justice of public imposi- 
tions is usually determined by these criterions, and the most 
frequently met objections to special assessments rest upon ac- 
cusations of inequality and lack of uniformity. 

In the first place it must admitted that from one point of 
view such charges for benefit are not universal. They do not 
attach to all subjects within the state, or even to all those 
within the political jurisdiction imposing them. If they did, 
they would scarcely differ from the ordinary local taxes. 
But within the specially created district they do possess the 
quality of universality. Every one whose circumstances place 
him within the rules laid down for the determination of liabil- 
ity, becomes subject to the imposition. There are neither ex- 
ceptions nor exemptions among those who would otherwise 
be included within this exercise of the taxing power. Within 
the district of apportionment, the demands of the rule of uni- 
versality are fully met. 

Complaints on the score of inequality and lack of uniform- 
ity arise likewise from a similar narrowness of view. Special 
assessment for benefit appears to operate unequally only to 
those persons who have in mind some ideal system of taxation 
by which they seek to judge every public imposition. Accord- 
ing to the standard of individual property, according to the 
standard of individual income, according to the standard of 
of individual expenditure — according to all these standards, . 
special assessments are certainly defective. But is it proper or 
scientific to test one system of raising public revenue by the 
norms applied to a totally different system ? The only method 
by which the equality or inequality of any public contribution 
can be determined, is by asking whether it operates alike upon 
one and all who are found in the same relative position. The 
criterion here, then, consists in inquiring whether one property- 
owner receiving a certain benefit from the improvement in hand 



489] SPECIAL ASSESSMENTS, 1 3^ 

is subject to a burden equal, to all practical intents and pur- 
poses, to that imposed upon every other property-owner who 
derives a similar benefit. The theory of special assessment 
makes every one subject to contribute in proportion to the 
benefits derived. In this, there is nothing unjust by reason of 
inequality or lack of uniformity. 

The very idea of the special assessment, namely, that it is a 
contribution in return for a specific benefit conferred, precludes 
the validity of all objections on the ground that the apportion- 
ment departs from the ratio of ability to pay, unless it be con- 
tended that no public burden, not imposed according to the 
ability of the contributor to pay, can ever be regarded as just. 
Whatever be taken as the evidence of ability to pay, special 
assessments for benefit will be seen to be unpardonable sinners 
against the rule adopted. They are not levied in the ratio of 
the value of the property; for in many cases an almost worth- 
less strip of land is increased in value to a greater extent than 
a most valuable estate. They do not conform to the variations 
in income; for one owner who derives no revenue at all from 
his unimproved lot may be subject to as heavy an imposition 
as his neighbor who collects from his tenant a handsome rent 
at the expiration of each month. They bear no permanent 
relation to the expenditures of the contributors; for the pres- 
ent purposes to which the property is devoted are altogether 
immaterial to the assessor. Wherein, then, lies the justice of a 
special assessmxcnt? If any justification whatever is to be 
found, it must be in this : Where an expense is to be incurred 
by a local authority which results in special, distinct and 
measurable advantages to the property of particular individuals, 
it is more equitable that those individuals who benefit thereby 
should contribute to the expense to the extent of those benefits, 
than that the burden should be placed upon others who have 
received no such special benefits. The full meaning of this 
principle will be better appreciated by applying it to one other 
theoretical objection that has been urged against the system 
of special assessments. 



140 SPECIAL ASSESSMENTS. [450 

§9. The " Unearned'' Increme^tt. It has been asserted 
that imposing upon the property-owner the expenses of 
any improvement to the extent that he is benefited thereby, 
is nothing more nor less than an appropriation by the 
pubHc of the so-called unearned increment in whole or 
in part, and that, as such, it is open to all the arguments 
that have been used against the proposal for a single tax 
on economic rent. Land values are not alone in securing 
enhancement through the efforts of society as a whole. All 
values are fixed in some degree by influences not under 
the control of those who profit by them. Therefore, to 
compel the land-owner to make compensation for the in- 
crement accruing to his property, is unequal and unjust.^ 
On the other side, it is said that there is at least a kernel of 
truth in the single tax theory, and that the legitimate pur- 
poses of the single tax upon economic rent are better effected 
through a system of special assessments for benefit than 
through the agency of the single tax itself.^ The last-men- 
tioned view seems to approximate the facts the more nearly of 
the two. Special assessment undoubtedly transforms a certain 
part of the enhancement of land values from an unearned 
increment into an earned increment.^ It does this at the very 
time that the benefit arises, thus avoiding every taint of con- 
fiscation of vested interests. Through it may be secured the 
chief advantages of the appropriation of the future unearned 
increment, without destroying the healthful stimulus arising 
from the private ownership of landed property. The total 

1 The Duke of Argyll, " The Betterment Tax," 57 Contemporary Review, p, 913. 

2 Black, Municipal Ownership of Land , p. 78. 

3 It is probably impossible to determine statistically the exact proportion of the 
increment taken. Some few inquiries made with a view toward the solution of 
this problem failed to show that the cost of the improvement assessed upon the 
owner constituted more than a comparatively small fraction of the gradual increase 
in value accruing to the property. The cases investigated, however, were mani- 
festly abnormal. A complete application of the system would no doubt intercept 
an appreciable portion of the so-called unearned increment. 



49 1 ] SPECIAL ASSESSMENTS. I4I 

increase is seldom appropriated, but only so much as is re- 
quired to defray that share of the cost of the particular im- 
provement which may represent the special benefit conferred. 
We have here no uncharitable begrudging of all rise in value 
due to conditions other than those created by the party who 
reaps the advantage. All that is demanded is that when a 
person secures an enrichment to his estate, and the expense, 
if not borne by him, must be borne by some one — in this 
instance the taxpaying public — he shall make compensation 
therefor. This is the true equitable principle. The con- 
tributor pays not alone because he obtains a benefit, but 
because that benefit is joined to an expense the burden of 
which finds a fitter resting-place upon his shoulders, than 
upon the shoulders of others not specially benefited.^ It is a 
question merely of imposing a burden where in justice it be- 
longs. 

From this theory it does not necessarily follow that the logi- 
cal outcome of the underlying principle would be to allow 
private individuals to demand similar contributions from their 
neighbors toward the expenses of private improvements which 
incidentally benefit the surrounding estates. A special assess- 
ment is levied in order to raise that part of the revenue required 
for a public improvement which is covered by the advantages 
accruing to the adjacent property-owners. If these advantages 
do not equal in value the entire cost of the work, the excess of 
cost is defrayed by the public treasury. In the case of a private 
structure, the first claim for the necessary outlay rests upon 
its promoter and builder. The estimated benefit accruing to 
him can never fall short of the expenditures involved; if it 
were expected to do so, he would not have undertaken to build 
it. The advantages anticipated by him outweigh, in his esti- 
mation, the cost, and if his expectations are defeated, the risk 
must be borne by him. There is neither occasion nor reason 

1 See Rae's reply to the Duke of Argyll, 58 Conte77iporary Review, p. 138. 



142 SPECIAL ASSESSMENTS [4^2 

to call upon others to assist him with contributions; they do 
not benefit to his loss, since he is amply repaid by the struc- 
ture which he secures. 

In respect to the claim that if the individual property- owner 
is to be charged for the benefits resulting from public improve- 
ments, he ought also to be compensated for injury traceable 
to them, all that need be said is that in the United States this 
is actually becoming the practice so far as that principle is 
justifiable. In other words, the constitutions of several com- 
monwealths^ enjoin that private property shall be neither taken 
nor damaged for public use without just compensation. The 
loss for which indemnity is sought must, of course, be the 
natural and probable result of the improvement in question, 
and' must be proved in positive terms. 

§ 10. Pi'actical Objections and Abuses. When now we 
turn to the practical objections usually urged against 
special assessments, we shall find that they are either based 
upon abuses or defects of a particular system in vogue, 
or are not confined in their application to this one method of 
raising revenue.^ It is true that the district of benefit is arbi- 
trarily fixed at the discretion of 'the legislature, the local 
authorities or the commissioners of assessment, yet in the ex- 
ercise of that discretion they are guided by well-defined* rules. 
This is the best that has been devised for any system of taxa- 
tion. The valuation of property, of income, or of expenditure, 
rests alone upon the "discretion of the assessor or the declara- 
tion of the contributor. The boundaries of every local juris- 
diction that possesses the power of taxation are arbitrarily fixed 
by legislative enactment. 

The difficulties that have arisen in respect to rebates are 
owing, as we have seen, to inaccuracy in the preliminary esti- 

^ California, Illinois, Nebraska, Washington, and various others. 

'^ Some of the supposed "practical objections " are too frivolous to merit serious 
consideration. Vide Schuster, " Betterment " in Palgi-ave's Dictionary of Politi- 
cal Economy, pt. 2, p. 137. 



493] SPECIAL ASSESSMENTS. 1 43 

mates of the cost of an improvement. Various remedies have 
been adopted. A most simple one is to postpone the assess- 
ment until the exact expense of the work has first been ascer- 
tained. Another lies in securing contingent bids upon the 
work as a basis for the commissioners' estimates. 

Much confusion and complication exist by reason of a 
duplicate s}'stem of special assessments maintained in some 
cities for two classes of improvements, the one involving the 
exercise of eminent domain, having a separate administrative 
machinery. Where, in taking private property, benefit is off- 
set against the damage, injustice is very apt to occur. As has 
been demonstrated, there is no necessary connection between 
an assessment of damages and an assessment for benefits. 
The procedure would be greatly simplified if the two processes 
were entirely separated, the right of eminent domain exercised 
without reference to benefits, and the assessment for all bene- 
fits for whatsoever purpose placed under the control of a 
single authority. 

The numerous legal obstacles encountered by our cities in 
the collection of assessments have had less to do with the 
financial department of the municipal government than with 
the department controlling the execution of public works. 
What has rendered so many assessments void and has cast 
the burden of the improvements upon the whole community 
instead of upon the benefited property owners, has been not so 
much defects in making the assessments as irregularities in 
executing the contract and in carrying out the work. Reform 
in this direction can be accomplished in only one way. More 
incorruptible and more painstaking men must be placed in 
charge of the executive departments of our cities, and public 
works must be effected less upon the basis of political spoils 
and more upon the basis of sound business management. 

Lastly, we have tg meet the objection that the system of 
special assessment for benefit is a dangerous one in a demo- 
cratic community. It is said that where the electoral fran- 



144 SPECIAL ASSESSMENTS. [494 

chise is in the hands of the landless multitude, the masses will 
enforce the construction of unnecessary public improvements 
at the expense of the few property-owners. Our study of the 
incidence of the special assessment has shown that there is a 
fallacy at the very foundation of this argument. The burden 
imposed does not rest exclusively upon the party who first 
pays it into the treasury; it may be, and in most instances is, 
shifted upon the occupier. All who possess the electoral 
franchise are, in a more or less degree, occupiers of premises 
abutting upon streets which may be improved. They have 
undoubtedly recognized the fact that they cannot secure to 
themselves the free enjoyment of public works at the sole ex- 
pense of the property-owners in the community. To this we 
must ascribe it that, as a matter of fact, the demand for local 
improvements has come almost universally from the parties 
immediately interested, and not from the so-called " non-tax- 
paying" voters. It is, furthermore, one of the inevitable con- 
sequences of democracy that the rich must always be in the 
minority. In the matter of special assessments they run no 
greater risks than they do with regard to all other public 
impositions. 

§ 1 1. Results. In conclusion, we must repeat that the choice 
of a community does not lie between the burden of special as- 
sessments and no burden at all. There is an expense to be 
met in the case of every local improvement which, if not de- 
frayed in one way, must be defrayed in another. Several 
different solutions to this problem have been offered. The 
first is the plan of levying tolls upon each individual who 
makes use of the improvement in question. This was at one 
time a customary proceeding in many countries, but it has 
now been generally abandoned. The impediment to traffic 
and freedom of intercourse is under this system intolerable. 

Secondly, a scheme of recoupment has obtained with some 
favor, particularly in England. It is, however, applicable only 
to the opening of new streets or public places. Here the 



495] SPECIAL ASSESSMENTS. 1 45 

municipality buys a considerable tract of land, retains what it 
requires and disposes of the surplus at its enhanced v'alue on 
the market. This plan is open to two objections. In the first 
place, it necessitates a large outlay of capital on the part of 
the city. With the ideas of the functions of municipal govern- 
ment prevalent in the United States, this system is with us 
scarcely feasible. Then apain, what is fatal to it in this coun- 
try, it runs counter to the generally existing constitutional pro- 
visions respecting the exercise of eminent domain, which for- 
bid the taking of land not required for a public purpose with- 
out the consent of the owner. 

Thirdly, the system of general taxation. This is employed 
in many places and often with satisfactory results^ Its great 
weakness consists in this, that it confers distinct and measur- 
able special benefits upon particular. individuals at the expense 
of the community. It thus fails, to conform to our sense of 
equity and fairness. 

Finally, the system of special assessment for benefit. This 
system has been the subject of exposition and discussion in 
the preceding pages. With few exceptions and abuses, it has 
operated in the United States to the general satisfaction of all. 
It rests upon principles of right and justice. It brings quick 
results at the very time when needed. It discourages the 
speculative holding of unimproved urban property. Its intro- 
duction, like that of every new plan for raising revenue, may, 
in places where other methods have long prevailed, involve 
conflicting considerations of expediency. But for young and 
rapidly growing municipalities, the system of special assess- 
ments is undoubtedly the best, the most practicable, the most 
just. 



BIBLIOGRAPHICAL NOTE. 



To indicate the authorities from which the materials for a 
study of this kind have been derived, has become an integral 
part of a writer's duty toward his readers. Actuated by this 
thought, I have cited amply as references in the notes those 
sources which may be available to the ordinary student. On 
the other hand, I have gained no small portion of the infor- 
mation here presented, especially with regard to the practical 
operation of special assessments, by personal interviews with 
the officials in charge of this branch of the municipal admin- 
istration in quite a number of our larger cities. To these offi- 
cials, as also to the rriany others who have kindly responded 
to -my inquiries both with written replies and with copies of 
their reports, I owe much, although I am unable to express 
my thanks to them individually by name. 

The great mine of information concerning special assess- 
ments in this country — hitherto for the most part unworked — 
is comprised in the countless legal decisions and legislative 
enactments bearing upon various phases of the subject. In 
this study I have fortified all inferences of law by proper cita- 
tions of the reports, and have also collated these citations in 
the table of cases which follows. The many cases and laws to 
which I have referred, but which did not yield material pre- 
cisely in point, have been altogether omitted. I think I may 
add that this is the first work upon this subject, however super- 
ficial it may be found to be, that can even make a pretense of 
comprehensive treatment. Yet numerous books contain al- 
lusions to special assessments or present discussions of par- 
ticular aspects of the topic. Those dealing with the law of 
146 [496 



497] BIBLIOGRAPHICAL NOTE. i^j 

Special assessments are the most satisfactory. I have con- 
sulted these works — often with profit — and I append a list of 
the titles. 

It is but just to all concerned to state that this study was 
entirely completed before I was afforded an opportunity to 
read the manuscript of Professor Seligman's lucid article upon 
"The Classification of Public Revenues," which appeared in 
the Quarterly Journal of Economics for April, 1893. That I, 
pursuing my investigations as I did under the guidance of my 
esteemed and learned instructor, should reach similar conclu- 
sions upon those points of theory elaborated by us independ- 
ently, iSj therefore, not to be wondered at. To him I am in- 
debted not only for the first suggestion of the study, but also 
for constant advice, encouragement and assistance. 



BIBLIOGRAPHY. 



1. Angell, Joseph K., and Thomas Durfee. A Treatise on the Law of 

Highways. 3rd Edition, Boston, 1886. 

2. Argyll, The Duke of. " The Betterment Tax." Contemporary Review, 

June 1890. 

3. Ash, Mark. J'he New York City Consolidation Act, as in force in i8gi, 

with notes, etc. Albany, 1891. 

4. Aucoc, Leon. Conferences sur V administration et le droit administratif, 

3rd Edition, Paris, 1886. 

5. Bastable, C. F. Public Finance. Lon<ion, 1892. 

6. Black, George Ashton. The History of Municipal Ownership of Land 

on Manhattan Lsland. Columbia College Studies in History, Economics 
and Public Law, Vol. /., No. 3. New York, 1891. 

7. Browne, William W. The Law of Assessment and Taxation. Rochester, 

1887. 

8. Burroughs, W. H. A Treatise on the Law of Taxation. New York, 1883. 

9. Clement, Pierre. La Police sous Louis XL V. Paris, 1866. 

ID. CooLEY, Thomas M. A Treatise on the Law of Taxation. 2nd Edition, 
Chicago, 1886. 

11. CooLEY, Thomas M. A Treatise on Constitutional Limitations. 6th Edi- 

tion, Boston, 1888. 

12. Dawson, William Harbutt. The Utiearned Lncrement. London, 1890. 

13. Desty, Robert. The American Law of Taxation. Saint Paul, 1884. 

14. Dillon, John F. Commentaries on the Law of Municipal Corporations. 

4th Editon, Boston, 1890. 

15. Ely, Richard T., assisted by John H. Finley. Taxation in American 

States and Cities. New York, i888. 

16. Gerard, J. W. City Water Rights, Streets and Real Estate. New York, 

1872. 

17. Hare, J. I. Clark. American Constitutional. Laiv. Boston, 1889. 

18. HiLLiARD, Francis. The Law of Taxation. Boston, 1875. 

19. Leemans, Hubert. Des Lmpositions Communales en Belgique. Brussels, 

1866. 

148 [498 



499] BIBLIOGRAPHY, 1 49 

20. Leidig, El'GEN. Pre7(ssisc/ies Stadtrccht. Berlin, 1 89 1. 

21. LOENING, Edgar. Lehrbtich des Detitschen VerivaltungsrecJUs. Leipzig, 

1884. 

22. Li'DWiG-WoLF, L. F. Die Gesetzgebting uber Wegebau und Expropriation 

im Konigreich SacJisen. Leipzig, 1878. 

23. Minutes of the \_Ne%o York'\ Assessment Commission, 18S0-1886. New 

York, 1887. 

24. Neu>l\NN, Fr. J. Die Steuer und das cffentliche Interesse. Leipzig, 1887. 

25. Rae, John. "The Betterment Tax in America." Contemporary Revieiu, 

May 1890. 

26. Rae, John. "Betterment: A Reply." Contemporary Review, ]\x\.y i^()0. 

27. Reitzenstein, F. von. Das Kommunale Finanztvesen. In Sciionberg's 

Handbuch der politischen (Ekonomie, Vol, III. 

28. Report of the Foor Law Commissioners on Local laxation, 1843. London, 

1844. 

29. Schuster, E. " Betterment." In Palgra^^e's Dictionary of Political Eco- 

no7ny, Part 2. London, 1892. 

30. Seligman, Edwin R. A. On the Shifting and Incidence of Taxation. Pub- 

lications of the American Econotnic Association, Baltimore, 1892. 

31. Seligman, Edwin R. A. "The Classification of Public Revenues." Qziar- 

terly Journal of Economics, April 1893. 

32. Simpson, Alexander, Jr. Municipal Assessments. Philadelphia, 1891. 

33. Special Report of the Comptroller to the Mayor and Cominon Council \of 

Brooklyn'^ on Arrearages for Assessments for Geiieral and Special Im- 
provements. Brooklyn, 1880. 

34. Stein, Lorenz von. Lehrbuch der Finanzwissenschaft. 5th Edition. 

35. Waples, RUFUS. "Improvements." In The Afnerican and English En- 

cyclopcedia of Law, Vol. X. Northport, Long Island, 1889. 

36. Welty, D. W. A Treatise on the Law of Assessments. New York, 1886. 



TABLE OF CASES. 



PAGE 

Alcorn z/^. Hamer 41 

Alexander vs. Mayor of Baltimore. 38, 
84, 96, 104, 123 

Allen vs. Drew 36, 98, 105 

Anderson vs. Kerns Draining Co. . 47 

Appeal of Piper 117 

B. & M. R. R. Co. vs. Lancaster 

County 116 

B. & M. R. R. Co. vs. Spearman. . 48 

Betts vs. Williamsburgh ill 

Blanding vs. Burr 50 

Bogert vs. Elizabeth 73 

Bond' vs. Kenosha 47 

Bouton vs. Brooklyn 105 

Bradley vs. McAtee 40 

Brewster vs. Syracuse 102 

Bridgeport vs. N. Y. & N. H. R. 

R. Co ... 84 

Broadway Baptist Church vs. Mc- 
Atee loi, IC2, 107, 116 

Buffalo City Cemetery Co. vs. Buf- 
falo 113, 114 

Burnett vs. Sacramento 50 

Cain vs. Commissioners .... 43, 90 

Caldwell vs. Rupert 40 

Canal Trustees vs. Chicago . . 46, 114 
Chambers z'j'. Satterlee . . .ill, 124 

Chicago vs. Baer 46, 96 

Chicago w, Larned . . . 46. loo, 118 
Coles z/i-. Williamsburgh . . .116, 123 
Commonwealth vs. Woods . . . .119 

Cone vs. Hartford 35 

Covington OT. Boyle . . . 40, 116, 117 
Daily vs. Swope . . . . 41, 90, 116 
Davidson vs. New Orleans . . 112, 121 

Dorathy vs. Chicago 122 

150 



PAGE 

Dorgan vs. Boston 34j 35 

Doughty vs. Hope 67 

Douglas vs. Harrisville 39 

Edgerton vs. Mayor of Green Cove 

Springs 42, 126 

Egyptian Levee Co. vs. Hardin . .116 

Emery vs. Bradford 121, 122 

Emery vs. San Francisco Gas Co., 50, 
90, 92, 1 1 1 

Ernst vs. Kunkle 45 

Falchw. Johnson 46 

First M. E. Church vs. Atlanta . 42, 114 

Forster vs. Scott .110 

Foster vs. Commissioners . . . 45, 106 

Galveston w. Heard 113 

Garrett vs. St. Louis 47, 90 

Gilbert z/j. Havemeyer 121 

Gilkeson vs. Frederick Justices . . 90 

Guest vs. Brooklyn 125 

Guilford vs. Supervisors 102 

Hagar vs. Reclamation District . .113 
Plamersley vs. Mayor of New York . 1 19 
Hammett w. Philadelphia . 36, loi, 106 
Harvard College vs. Boston . . . .114 

Hassan vs. Rochester 114 

Hastings vs. Columbus 103 • 

Hawkins w. Rochester 119 

Hay den vs. Atlanta 42, 90 

Hill OT. Higdon 45 

Hines vs. Leavenworth . . 48, 90, 125 

Flonore vs. Chicago 1 1 1 

Howell vs. Buffalo 103 

Hoyt vs. East Saginaw 108 

Hurford vs. Omaha 49 

Indianapolis vs. Mansur 47 

Keese vs. Denver 50 

[500 



5oi] 



TABLE OF CASES. 



i=;i 



King w. Portland 51, 102 

Lafayette vs. Fowler 92, 124 

Lexington vs. McQuillan's Heirs. . 40 
Litchfield vs. Vernon 93, 95, 122 

Livingston vs. Mayor of New York. 28 
Loan Association vs. Topeka . . 91 

Lumsden vs. Cross 47 

McGehee vs. Mathis 43 

McGonigle z/j. Allegheny 114 

McMasters vs. Commonwealth . . 37 
Macon vs. Patty. . . .20, 41, ici, 119 
Manice vs. Mayor of New York . . 104 
Matter of Albany Street . . 98,115, 123 
Matter of Beekman Street . . . .93 
Matter of Broadway Widening . . 117 

Matter of Canal Street 118 

Matter of Central Park 123 

Matter of Church 98 

Matter of Common Council of Am- 
sterdam Ill 

Matter of Degraw Street 115 

Matter of Delancey 123 

Matter of Delaware & Hudson Canal 
Co. . ._ . 103, 112 



Matter of Dorrance Street . 



35. 



123, 126 
Matter of Drainage of Lands . loo, iii 
Matter of Flaibusn Avenue . 93, 104 
Matter of Fourth Avenue . . 91,97,117 
Matter of Furman. . 104, Ic8, 115, 123 

Matter of Gantz 123 

Matter of Gardner 116, 118 

Matter of Hamilton Avenue ... 93 
Matter of Hebrew Orphan Asylum .113 
Matter of John and Cherry Streets. 117 

Matter of Kiernan ill 

Matter of Lands in Town of Flatbush. 96 
Matter of Livingston .... 104,114 

Matter of Lowden iii 

Matter of Mc Ready ....... 104 

Matter of Mayor of New York . . .113 

Matter of Mead 85 

Matter of Military Parade Ground . 1 1.8 



Matter of One Hundred and Twenty- 
seventh Street no 

Matter of Pennie 123 

Matterof Ro! erts 103 

Matter of Second Avenue M. E. 

Church 113 

Matter of Sharp I ii 

Matter of St. Joseph's Asylum . . .113 

Matter of Third Street 119 

123 
118 
114 
III 
103 
118 
109 



16, 12: 

- 103 
44 



Matter of Thirty-ninth Street . . . 
Matter of Twenty-sixth Street . . , 

Matter of Turfler 104, 

Matter of Union Elevated R. R. Co. 
Matter of Van Antwerp .... 84, 
Matter of Washington Park . ". . . 
Matter of Widening Wall Street . . 
Matter of William and Anthony 

Streets iiv^, i^^^ 

Matter of Zborowski . . 
Mayor and Aldermen vs. Maberry 
Mayor of Albany, ex parte .... 95 
Mayor of Baltimore vs. Horn . . . J03 
Mayor of Birmingham vs. Klein 41, 
84, 86, 90, 126 
Mayor of Mobile z/5. Dargan ... 41 
Mayor of Mobile vs. Royal Street 

Railroad Co 41 

Mayor of New York vs. Cash man. 28 
Mayor of New York vs. Colgate . .121 
Moale vs. Mayor of Baltimore . . 109 

' Motz vs. Detroit 45? 9° 

I Municipality No. 2 vs. Dunn. . 40, 104 
j Municipality No. 2 vs. White . 40, 125 

j Neenan vs. Smith 120 

, New Orleans Praying for Opening 

i of Streets 40 

' Nichols vs. Bridp^eport 35 

, Norfolk City vs. 'Ellis 42, 116 

Northern Indiana R.R.Co.tvj.Conelly. 98 

I O'Reilley 7^.r. Kingston I16 

Ottawa vs. Spencer 46 

Owners of Ground vs. Mayor of Al- 
bany 92, 98, III, 116 



152 



TABLE OF CASES. 



[502 



Palmer vs. Stumph 47 

Palmer vs. Way 49 

Patterson vs. Society for Useful Man- 
ufactures .... 114 

Peay vs. Little Rock. ..... 44 

People Vi. Board of Asesssors . . .110 

People vs. Brooklyn 123 

People vs. Corporation of Brooklyn. 118 

Peoples. Henshaw m 

People vs. Lawrence 93, 122 

People z/i-. McGu ire . 117 

People vs. Mayor of Brooklyn. 29, 88,95 

People w. Mayor of New York . . 122 

People vs. Mayor of Syracuse . .115, 

117, 118 

People vs. Rochester m 

People w. Yonkers 104 

Philadelphia vs. Tryon 37 

Pueblo vs. Robinson co 

R. & A. R. R. Co. vs. Lynchburg . 42 

Raymond vs. Cleveland 103 

Reeves vs. Treasurer ... 45, 106 

Re illy z/j. Albany 122 

Rice vs. D. L. & N. Turnpike Co. . 39 
Roosevelt Hospital vs. Mayor of New 

York 84, 113 

Roundtree vs. Galveston .... 42, 90 

Sands vs. Richmond 42 

Schenley vs. Allegheny . . 37, 116, 126 
Scovill vs. Cleveland . . . 45, 95,, 1 23 

Seaman vs. Hicks 108 

Seamen's Friend Society vs. Boston. 114 

Seattle vs. Yesler 51 

Seneca Road Co. vi. A. & R. R. R. Co, 93 

Sharp w. Speir 121 

Shuford vs. Commissioners .... 43 

Sinton vs. Ashbury 102 

Smith vs. Aberdeen 41, 126 

Soens vs. Racine 47, 105 

Spencer vs. Merchant ... . . . II3 

Stafford vs. Mayor of Albany . . .119 
State vs. City Council of Charleston. 43 
State vs. Dean 38, 125 



State vs. District Court of Ramsey 

County 48, 96, .114, 123 

State vs. Dodge County 49 

State vs. Mayor of Hoboken . . . 100 

State vs. Milwaukee 122 

State vs. Newark 38, 99, 1 17 

State, ex rel. Agens vs. Newark. . 100 

State vs. Portage 95 

State vs. West Orange .... 100, 103 

Stinson vs. Smith 47, 1 25 

Stuart vs. Palmer 98 

Surgi vs. Snetchman 40 

Sutton's Lleirs vs. Louisville. ... 39 

Taylor vs. Boyd 42 

Taylor vs. Chandler 44, 125 

Taylor vs. Palmer . 50,84, loi, 120, 121 

Thomas z/s. Leland 92 

Tidewater Co. vs. Coster . . . 99, 123 
Turpin vs. Grand Road Co ... , 96 

Uhrig vs. St. Louis 96 

Ulman vs. Mayor of Baltimore . .112 
Union Iron Works vs. Buffalo . . , 105 

Wallace vs. Shelton 40 

Walsh vs. Mathews 121 

Walston z'.y. Nevin 113 

Warren w. Grand Haven . . . .117 

Warren vs. Henly 48 

Washington Avenue . 20, 92, loi, 106 
Washington vs. Mayor of Nashville. 44 

Washington vs. State 43 

Weeks vs. Milwaukee .... 47, 125 
White vs. People .... 46, loi, 116 
Whyte vs. Mayor of Nashville. . . 44 

Willard vs. Presbury 39 

Williams z/j. Cammack 4I 

Wilson vs. Chilcott 50 

Williams vs. Mayor of Detroit. 45, 104, ill 
Woodbridge vs. Detroit .... 45, 95 

Woodruff z^.y. Fisher I05 

Wright vs. Boston 34, 1 13 

Wright vs. Chicago 46 

Yeatman vs. Crandall 40, 90 

Zion Church vs. Mayor of Baltimore. 116 



Educational Institutions Attended by the Author. 
The Public Schools of Omaha, Nebraska. 
Johns Hopkins University, 1888-90. 
Columbia College, 1890-93. 

Degrees and Honors Conferred upon the Author. 
Graduate of the Omaha High School, 1887. 
Ph. B., Columbia College, 1891. 
A. M., Columbia College, 1892. 

University Fellow in Political Science, Columbia College, 
1892-3. 

Publications by the Author. 

** An Economic View of Electric Lighting." The Independ- 
ent, March 20th, 1890. Reprinted March 5th, 1891. 
" Public Control of Electric Lighting." The Independe^it, 

May 15th, 1890. Reprinted March 5th, 1891. 
" A Column to Columbus." Frank Leslie's Illustrated News- 
' paper, December 20th, 1890. 
"Farm Mortgages and Silver Legislation." Columbia Law 

Times, January 1892. 
" The Cost of Living." Charities Review, April 1892. 
" Peffer's, 'The Farmer's Side.'" A review in the Political 

Science Quarterly, September 1892. 
"Municipal Control of Electric Lighting, I and H." The 

Independejit, November 3rd and loth, 1892, respectively. 
" British Electric Lighting Legislation." Columbia Law 

Tiines, Fe^bruary 1893. 
** Cost Statistics of Public Electric Lighting." Publications 

of the American Statistical Association, March 1893. 
" The Constitutional Development of Nebraska." Papers 

of the Nebraska State Historical Society, 1893. 



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